“Work” means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the references in subsection (1) to offering a person work are, in relation to contract work, to be read as references to allowing a person to do the work.

This is, apparently, the terminology used for the Scottish equivalent of pupil barristers. But you can bet there’ll be a fair bit of head scratching by lawyers and HR staff when reading this section. A stable, if you were wondering, is a Scottish chambers, like this one. Apologies for this article to Usefully Employed readers North of the border.

The latest Review is hosted by Family Law blog Pink Tape and you should go over there and have a read. Blawg Review’s main website and an archive can be found here.

Don’t worry! The wickedly ascerbic Marina Hyde of the Guardian’s Lost in Showbiz will give you a run down:

To those of you who have written asking, “Can we have Trudie every week?”, the answer has always been a regretful no. We can only have Trudie when she does something adorable, like fly an entourage including her hairdresser by private jet from New York to Washington so she can go to a party, or make the 80-mile trip to the house of fellow environmentalist Zac Goldsmith by helicopter.

http://www.guardian.co.uk/lifeandstyle/lostinshowbiz/2009/jul/17/lost-in-showbiz-trudie-styler

Every word written there is true, and barristers and solicitors need to read it, and join forces. Currently the debate is driven by sectors of the law where solicitors and barristers still enjoy their monopoly on access to the courts, but practitioners in employment will be aware that the number of people in the system who are either is diminishing. In many tribunal hearings the Respondent is represented by a “consultant” from Peninsula or some similar organisation, and the Claimant is represented by a charity, law centre, another “consultant” from an insurance services provider, or no-one at all. The Employment Judge is the only legally qualified person in the room. This is a vision of the future in other legal areas – just ask a magistrates’ court clerk what she thinks the future holds (I recently did at a party, and got my ear bent).

If solicitors and barristers are tricked, whether by the market or the LSC, into thinking it’s a two-horse race then we’ll both lose. In fact, we face the Prisoner’s Dilemma – we’ll take a hit, but how big a hit will our fear and egos make us take?

As the Law21 blog has long evangelised, solicitors and barristers need to trade on their expertise and image (still relatively high) instead of the exclusivity in what they do (rapidly diminishing). We need to be entrepreneurial. Read author Jordan Furlong’s latest prophecy of doom here – much like climate change we can’t prove 100% that it’s something that will happen and that we can change, but we’d be nuts not to treat it as such.

EDIT – Charon QC did a recent podcast on law firm marketing – find it here.

However, as the somewhat-conflicted Daily Mail states, the main benefit that comes with its new EU Parliament members is money. And quite a bit of it too. The newspaper reports:

The far-Right British National Party will pocket £5.2million of taxpayers’ money to spread its message of hate in the European Parliament. Party leader Nick Griffin and his fellow MEP Andrew Brons will get paid more than £446,000 each in salary, office and travel allowances every year. The breakthrough will also enable them to siphon more than £147,000 each year directly into party coffers.

Of course much of this will be spent on staff, and here race discrimination legislation does come in. Indeed, there has been some noise on facebook and twitter trying to persuade well-qualified political researchers and agents who are black, or Jewish, or of any other group that Griffin doesn’t like, to polish up their CVs to see how their qualifications and skills compare to people he’ll actually hire. That way some of the BNP’s public funding could be redistributed via the employment tribunal system…

The rule of law is a concept poorly understood by most in our country, yet it underpins our constitution and civil liberties.

Please read Charon’s excellent post. Lord Phillips, of course, couldn’t help but refer back to Harriet Harman’s evocation of the dreaded Court of Public Opinion…

To celebrate his anniversary Daniel launched a charity appeal to try to raise £10,000 for the Starlight Foundation. He’s achieved it in a very short space of time, but you can still donate at http://www.justgiving.com/danielbarnett2009.

• is inappropriately one-size-fits-all, with the same requirements of High Street solo practices and of magic circle firms;
• that the regulation they practice is more suited to the former.

Jordan Furlong’s Law 21 blog looks at a report produced by the Legal Services Policy Institute which contemplates complete divergence, with separate regulation on both a firm level and an individual lawyer level. This leads to the unattractive prospect of two tiers of solicitors emerging, one qualification associated with “big” law, and one for the high street sector. The latter will inevitably be stigmatised as somehow inferior, and as there huge areas of cross-over between the work of High Street and large firms (not least employment!) an unfair differentiation in perceived quality will result.  

http://www.law21.ca/2009/03/03/the-evolution-of-lawyer-regulation/

Sir Fred should not be counting on being £650,000 a year better off as a result of this because it’s not going to happen. The Prime Minister has said it’s not acceptable and therefore it will not be accepted. It might be enforceable in a court of law, this contract, but it’s not enforceable in the court of public opinion and that’s where the government steps in.

A video of the interview can be found here.

So what if the contract is legally binding? What if the parliament has to specially legislate to recover the money? At present the government cannot simply seize your money (or anything else) just because they want to. Lawful authority is needed. This isn’t merely an effect of new human rights legislation, it’s a fundamental part of English law. In the first-year law student case of Entick v Carrington (1765) 19 Howell’s State Trials 1030, it was said:

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good.

This is one of the cornerstones of the British constitution – the executive can only do what the legislature has given it lawful authority to do. So Harriet Harman taking away Sir Fred Goodwin’s pension entitlement would be the modern equivalent of Lord Halifax, himself a Secretary of State, signing an unlawful warrant to seize Entick’s seditious newspaper articles.

So will they legislate? If parliament did pass such an Act, English law falls away as parliament is supreme. This is where European human rights would surely come into play. Article 1 to the First Protocol to the European Convention on Human Rights:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

So any Act will need to be in ‘the public interest.’ Does anyone seriously expect that the European Courts will find that it is in the public interest to retrospectively void a lawful contract to recover an economically insignificant sum of money because it doesn’t seem particularly fair that he should receive it and the public are a bit cross? 

This was an exceptionally foolish time for the government to suddenly stick its heels in, because unless Sir Fred throws in the towel the government will lose, however much it sticks in the throat. And by the time the government do lose, it’ll have had all the factual (and probably embarassing) evidence heard in court, risked adverse findings of fact over Lord Myners’ role, been to Europe, had years’ worth of newspaper headlines against it, and spent many many times Sir Fred’s pension entitlement into the bargain.

The employment law lesson here is that the government committed a basic mistake – negotiate someone’s severance all at once, because afterwards is too late…

Finally, it’s worth quoting Sir Fred’s letter in full, because no-one else seems to be doing so and it gives him more dignity that you’d imagine, whatever you might think of him.

Dear Lord Myners,
You telephoned me yesterday and asked me to consider voluntarily taking a material reduction in my pension entitlement as a “gesture” to acknowledge the level of Government support being made to Royal Bank of Scotland (RBS).
You highlighted that the absence of such a gesture would give rise to significant adverse media comment.
I outlined to you my view of the matter, but as I had not been expecting your call and as you expressly requested me to do so, I undertook to reflect on the matter again.
You emphasised that I would need to provide you with an answer ahead of the publication of the Group’s annual report and financial statements sometime next week.
It came therefore as something of a surprise to find that both details of forthcoming 2008 financial statement disclosures relating to my pension and the substance of our telephone conversation had been placed in the public domain a few hours after we spoke.
In the circumstances, I feel that an earlier response to your request is necessary, and the purpose of this letter is to provide that.
Whilst my pension is the current focus of attention, there were a number of other aspects of my departure from RBS which need to be considered at the same time, particularly in the context of “gestures” and appropriate behaviour.
My contract of employment provided for a 12 month notice period, which I voluntarily waived in October of last year.
This amounted to a loss of 1 years’ (sic) salary, and I discussed this with you at the time, when you indicated that it was both an appropriate and sufficient recognition of the circumstances.
Subsequent to this, you approached the chairman of the group remuneration committee to suggest that I should waive certain share related awards which would otherwise have vested upon my leaving the group.
Whilst difficult to value with precision, these had a value equivalent to about 3 months’ salary at that time.
During these discussions, I am told that the topic of my pension was specifically raised with you by both the chairman of the group remuneration committee, and the group chairman, and you indicated that you were aware of my entitlement, and that no further “gestures” would be required.
On this basis, I agreed to waive my entitlement to the share related awards and proceeded to subscribe for my full allocation of shares in the ensuing share issue.
Like you, I believed that these gestures were appropriate in the circumstances, and sufficient, and revisiting the position today, I believe that they remain so.
I accept responsibility for that which I was responsible for, and recognise that my actions must be consistent with this.
I believe that they have been, and to voluntarily accept a reduction in a pension entitlement which has been built up over many years and in other employments in addition to RBS, is not warranted.
It is important to recognise that my pension arrangements have not fundamentally altered since I joined the group in 1998.
Whilst the quantum of the “pension pot” figure has increased, this is principally as a result of the assumption used last year about retiring at age 60 no longer being appropriate. The amount which I am due to receive as a pension continues to be calculated in a manner consistent with prior years.
Whilst I suspect that you will not now agree with it, I hope you can understand my rationale for declining your request to voluntarily reduce my pension entitlement.
In conclusion, since our private conversation yesterday is now in the public domain, I have no objection to the complete content of this letter being made public.
Yours sincerely,
Sir Fred Goodwin

So how wonderful to arrive at the hearing of the claim, get the original document in the employer’s witness’s hands and say:

Did you complete this form in June 2007 Mr Smith?

Yes.

Certain?

Yes.

You didn’t fill it in afterwards?

Certainly not.

You’ll see Mr Smith that there’s some tippex on the original pre-printed date on the proforma, and you’ve written 2007.

Er, yes.

Could you just hold the document up to the light and tell me what year is pre-printed on the form?

[pause] 2008

Would you like to rethink your answer to my question on when you filled the form in?

Erm, I guess I could have printed a lot of 2008 forms in advance.

But you didn’t did you?

Well, no.

Surely a candidate for a litigation version of the Darwin Awards. If you’re going to perpetrate a fraud, forgery, or even just a bit of a fib, at least think it through first.

The same can be said of Lucille Hester of Dallas, who has a letter she claims to have been given in 1999 by her half-brother who died in 2002. Such a shame the letter is typed in Calibri, invented in 2003 specifically to be the default font in Office 2007, not released until 2006. Read the news report here.