The Law21 blog entry on marketing has again inspired me to rant on the future of the legal profession.
‘Your solicitor, qualified to answer’ is a major national advertising and PR campaign to promote solicitors to the public.
Our aim is to encourage consumers to use solicitors by promoting their services and highlighting the unique selling points solicitors have to offer. Running from April to June, the campaign will focus on the reasons why solicitors are the only sensible choice for consumers. They are:
- more expert and reliable than other providers of legal or quasi-legal services
- properly regulated
- excellent value for money
… or so say the Law Society in their recent marketing campaign to raise the ‘brand’ of solicitors. I’d edit the list as follows:
- more expert and reliable than [many] other providers of legal or quasi-legal services [but are increasingly inferior to some]
- properly regulated [and insured for when they fail to be more expert and reliable than the other side]
- excellent value for money.
I don’t want to be confrontational; there are solicitors firms out there that do all the Law Society says, but they are the minority. Use a solicitor ten times over rather than some internet cowboys, but the badge of ’solicitor’ itself is no guarantee of quality. Solicitors should be the cornerstone of reliability and expertise, but firms must make some real changes. Taking the Law Society’s list:
- Expertise: I started off a solicitor in a high street firm which did a good amount of employment law for the firm’s size. I moved from there to a consultancy / insurance company you’ve never heard of, which in respect of its consultancy at least is completely unregulated. The quality at the latter was ten times better - the expertise and dedication to employment law was enormous. I’m not saying the law firm wasn’t competent - it was that and more - but it didn’t have the same excellence. I attribute the excellence at the consultancy to the commercial pressure of competition. If you’re Bloggs & Co Solicitors then you immediately have a badge stuck to your chest, and the public will reckon you the best man for the job because of it. If you’re Bloggs Limited and you want to succeed, you’d better make a name for yourself, get out there and network, and deliver on your commitments.
- Regulation: Boy do you need that. I wouldn’t for a second disagree. When you provide legal services you play with people’s lives, and they need a fundamental reassurance that there is a legal framework for them to seek redress when you cock it up. What’s wrong with the system is the regulator itself - the SRA. Its huge, monolithic, inefficient, and worst of all its one-size-fits-all style of regulation prevents firms from competing effectively. You also need compulsory insurance for professional negligence, and most other professionals would do a double take at the premiums solicitors have to pay.
- Excellent value for money: Where solicitors lack at the moment is in charging innovation, as the Law21 blog notes every couple of weeks or so, and as I’ve rambled about previously.
This is all terribly sad, as it commercialises the role of solicitor which in previous days wasn’t simply a job, but a vocation. But solicitors haven’t changed for the worst, they’ve simply been outpaced by modern society. They must adapt and they must survive. The Law Society campaign is completely backwards - it tries to educate people that solicitors are the answer to their problems when this message is becoming less and less true every day. Their time and resources would be much better spent in engaging with their own profession on how to rescue the brand of ’solicitor’ and invest it with some meaning in the modern age.
It’s a cynical view that all you do when your company goes bust is put it into administration and buy it back, but would seem to be amply demonstrated by this case.
Company goes into administration, administrator has no money for wages so sacks all the staff, then duly sells business back to original owner. Is dismissal for a reason connected with the transfer, thus giving TUPE protection? No. The dismissal’s because the administrator didn’t have any money. The allegation that this is exactly what was planned by the owner all along isn’t relevant once you establish the motivation and mind of the actual dismissing officer.
This is a real kick in the balls for employees in this situation. Although I think the decision’s probably correct, the morals of it are amply spelled out by the court:
As counsel have identified, the critical question is whose decision was it? Once the answer is that it was the administrator’s decision, then nothing done by Craig Smith before that decision was taken nor after it could have any bearing on the reasons why Mr Rutherford acted as he did. The facts may give rise to the inevitable conclusion that Craig Smith cynically manipulated the insolvency of Friction, saw the opportunity of the August holidays as the best time to place the company in administration and did so not simply with a hope but with every expectation that by reason of Realty’s close association with Dynamex, Dynamex itself would soon fall into his palm. That is what happened. It is not an attractive story. It brings no credit to Craig Smith. But Craig Smith did not decide to dismiss the employees even though he knew that would happen and wanted it to happen. Mr Rutherford dismissed them. He did so for economic reasons.
Having decided as it seems to be to me inevitable that the reasons have to be discerned from the actions of the administrator whose actions were unsullied by Smith’s scheming, then there is only one conclusion for any tribunal to reach: the reason for dismissal was an economic one. As Mr Ralls recognised, if the focus is on Mr Rutherford’s state of mind, then he is “a shot fox”. Unsporting as shooting a fox may be and as lacking in fair play as Craig Smith’s machinations were, I am compelled to allow the appeal and restore the decision of the Shrewsbury Employment Tribunal.
This is not an uncommon situation, and there may well be some argument for legislation providing for extra accountability by those who purchase a business they owned until a few weeks before. Will this happen though? No.
Charon QC, quoting The Prisoners Voice, quoting the Telegraph, reports on a case where a chef was prosecuted for hitting his brother over the head with a shovel following a row on whether or not Shepherd’s Pie properly comes with a layer of tomatoes on top. Of course it shouldn’t, but unfortunately sometimes does.
This reminded me that during my admittedly-high-volume employment law insured advice days, we had an extraordinary number of hotels and restaurants ring to say that their chefs were either mentally ill, or had been convicted of a violent offence, or often both. What is it about being a chef that triggers these mental problems? Has any research been done? Is it the job, or is it the predisposition of those it attracts?
I’d like some answers.
It’s happened to me metaphorically but never literally: being grabbed by the balls can give you a good constructive dismissal claim, as this funny case shows.
The report is so short it also acts as a good swot-sheet for constructive dismissal authorities.
EDIT: Actually, I’ve just remembered an incident where this did happen to me at work.
My earlier assurances that my blogging wouldn’t be interrupted by work have been shown to be completely hollow - over two weeks have passed since my last post.
And it’s not even as if there’s been nothing to report. Favourite case recently must be Kuzel v Roche Products Ltd which talks of the burden of proof in Unfair Dismissal cases. Generally in law the person advancing a case, eg you saying that your neighbour cut down your hedge, the state saying you murdered him in retaliation, has the burden of proving the allegation. Not so in unfair dismissal. S.98(1) ERA 1996 moves the burden on to the employer. So if I say “you sacked me for an absolutely bloody stupid reason” then my employer doesn’t have to disprove my version of events to oppose the claim, they have to come up with their own valid reason for my dismissal and prove that. The reasons I advanced don’t really come into it.
In this case however the employee had advanced whistleblowing (protected disclosure) as the reason for her dismissal. It’s obvious why she would make sure she did this if she thought she might have a shout - whistleblowing claims aren’t subject to the financial limits of normal unfair dismissal and include an award for injury to feelings. The employer ran some taking-the-piss SOSR defence about the relationship having broken down. The tribunal stuck two fingers up at everyone by finding that dismissal was for a third reason, against the pleadings of both parties. The consequence for the simple unfair dismissal claim is obvious - it succeeds as the potentially fair reason advanced by the employer was not found to be proved. The odd consequence is for the whistleblowing claim - where does the burden of proof lie? Traditionally it should be at the employee’s door, it’s her case and her allegations. The statute is largely silent on the issue, the reversal of the burden of proof only seeming to explicitly apply to the reason actually advanced by the employer to be the reason for the dismissal. Well for once we’ve some useful guidance, produced by the EAT and approved by the Court of Appeal:
- Has the employee shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?
- If so, has the employer proved his reason for dismissal? Failure to do so will render the dismissal unfair, and then coupled with a primia facie case from the employer will entitle the tribuanl to infer that the employee’s stated reasons are correct.
- Has the employer disproved the reasons advanced by the employee? Even if the employer has failed to prove it’s own reason for the dismissal it may still have disproved that of the employee.
- If not, dismissal is for the reasons stated by the employee. It is not however, at any stagae, for the employee to prove her reason.
I’ve mucked around with the above to apply generally.
The Court of Appeal seem to have taken the line that this case is one for minority interest, stating that it shows how worked up lawyers can get about something like the burden of proof. I agree, but not with their observation that this sort of case will be rare. Protected disclosures are often presented in conjunction with a general claim for unfair dismissal, and its similarity to a discrimination claim may well mean that the facts coincide with the parties having fallen out generally. The unfair dismissal might well then often succeed without the whistleblowing. The same can be said about maternity-related dismissals.
I have now started pupillage. It’s early days, but it seems as though it was the right decision.
In deference to the quality blogs and other sites out there that talk about pupillage, and (I admit) because it makes me a little nervous, I shan’t be blogging about what it’s like. In tribute to the good old days of BabyBarista however, the barristers I’ve met so far I’d describe as WheelerDealer, AlFresco, RichCynic and SwearBox. Now that’s my last word on the subject.