The world of UK employment law has changed drastically during the past few years. The introduction of employment tribunal fees, and the extension of the qualifying period for unfair dismissal rights has seen employment law become an increasingly narrow niche.
Claimants are fewer, and they are usually litigants in person, which means that it is easier to stand up to them in tribunal with unqualified representatives (such as unregulated consultants, or confident members of your HR team). Many of the claims that do proceed are complicated and messy, and therefore costly and time consuming. Those which have any merit are usually settled via acas. Many without merit are also settled on commercial/economic grounds.
In my opinion there is an overall picture of the de-risking of employment law (with potentially more de-regulation to follow as consequence of the UK’s exit from the EU). Employers are less concerned about straying over the lines and incurring smaller liabilities. By way of example, despite the Government’s criticism of zero-hours contracts, and the steps they have taken with the intention of eradicating them, figures show that they are actually on the increase.
In a de-risked world of employment, the online services available to HR teams and the services of cheaper unregulated consultants are often sufficient to support your HR team in handling day to day employment law needs and queries. Provided you want to follow the spirit and the letter of the law, there is no shortage of cheap sources telling you what the law says. Let’s not forget the relentless march of artificial intelligence, which in turn will likely soon be in a position to replace many of the advice line style services provided by the unregulated consultants – within a few years a robot will have the answer to your legal question.
Traditional employment lawyers, so far as they are used for day to day employment law advice, have therefore become an expensive resource for most businesses. Being “commercial” and “practical” in their advice is now a pre-requisite, and is no longer enough to demonstrate real value to the client.
So why do we need employment lawyers? what do they do? and why are they so much more expensive than the alternatives?
Let’s deal with the last question first. Lawyers are regulated. They must maintain and develop their expertise; be registered with and authorised by the SRA; maintain high standards of quality; and hold sufficient professional indemnity insurance. Law firms are expensive businesses to run, and so the services they provide often feel expensive too (unless you feel you are getting value for money). The benefits however are that as a client of a law firm you know that you have the right to expect higher standards; the protection of regulation; the ability to pursue complaints through an independent arbiter (legal ombudsman); and the safety net of professional indemnity insurance. The advice you receive also has the benefit of “legal privilege”, which simplistically means that it is confidential from the Court, whereas advice from unregulated consultants is fully disclosable in Court proceedings.
It’s very nice to have the comfort of all of those things, but is it really worth the cost in relation to the apparently de-risked areas of day to day employment law? Perhaps not, but it will depend on your appetite for risk and the potential stakes. It will also depend on the relationship you have with your lawyer, and whether you trust them as part of your team.
Returning to the questions – Why do we need employment lawyers? and what do they do?
Well, an obvious point to make is that not all areas of employment law have been de-risked. Strategic and organisational projects often have a lot riding on them and require significant investment of time, money and other resources. It doesn’t make sense to skimp on the legal advice supporting those projects. The cost of taking proper legal advice will be money well spent when compared with the potential fall-out of getting it wrong.
Other high stakes matters include whistleblowing and discrimination complaints (particularly for more highly paid employees); arrangements in relation to pay and incentives; Staff transfers, and medium to large scale redundancies.
A common theme running through all of those areas is that they are not simply questions of law. They relate directly to a client’s strategy and objectives, with elements of brand and reputational protection as well as top line and bottom line impact.
The role of employment lawyers, as with the role of any lawyer in this context, is to provide guidance and insight (advice) to help the client identify and successfully achieve its objectives. This can only be done through gaining a deep understanding of a client’s strategy, aims and objectives in any given situation. This is where lawyers (not just employment lawyers) can start to add real value. If a client is open to involving their lawyer in a strategic discussion (and the lawyer is willing to be involved in that discussion), then there will be huge benefits to be had in identifying and implementing sound and robust initiatives and solutions at a much earlier stage, freeing up business leaders to focus on core business; provided of course that the lawyer has the ability to contribute and engage at that level. That is the difference between lawyers who can add value, and those who can’t.
This evolutionary process reflects my personal journey. My background is as an employment law specialist, but I really don’t see myself as that any more. I don’t really provide any day to day employment advice anymore, although there is a team of people around me who do. My focus is on working with clients to ensure that they have the legal (and business) insight and guidance that will help them achieve their strategic objectives. My particular area of expertise in that context is now “people strategy”, but the reality is that this is interwoven with business considerations relating group and commercial development, real estate, finance and general business risk.
Oh, and if what I have described sounds interesting and compelling to you, and you don’t think you are getting it from your current advisers, please get in touch and I will be happy to explain more