EMPLOYMENT: SENIOR EXECUTIVE: An Introduction to London (Firms)

Overview of Senior Executive practice area 

Advice, negotiation and litigation in relation to high-stakes, high-value employment issues is often termed “senior executive” work by employment lawyers, but in reality it encompasses not just working with the c-suite and the level below but also typically means acting also for bankers and others in financial services alongside fellow professionals such as accountants, lawyers and doctors. The work also involves a fair smattering of less senior employees who have experienced such a blow that they may never work again, often related to long-term ill health and disputes about long term disability insurance. It can also straddle other areas of law, such as LLP and partnership law, shareholder disputes and personal injury work (e.g. where an employee is complaining that they have been made ill by stress at work).

This practice area has been vibrant for some time, catalysed in recent years by two related themes: #metoo and the extension of the Senior Managers and Certification Regime into a wide area of financial services.

The combined effect of the two has, alongside whistle-blower protection and increased societal condemnation of all forms of discrimination, in many cases, reversed traditional outcomes in cases involving misconduct by senior colleagues who have been called out by junior staff. We have largely moved from the old ways of exiting or moving the complainant to putting the managers in the firing line. But, when this happens, not only is an executive’s job on the line, potentially their whole career is, too. This has been the upshot of the SMCR and a paradigm shift in how seriously issues like harassment and bullying are taken.

This has turned what was once seen as mundane and low-level noise from junior staff into career-defining moments for longstanding and high performing servants of a firm, causing employees accused of misconduct to seek us out as they need the best advice that is available at these critical moments in their careers.

So, whilst our clientele still includes many experienced staff, often women, experiencing unacceptable behaviour or being victimised for whistleblowing, it just as often, these days, includes their colleagues, often but not always men, accused of harassment and bullying or other misdemeanours: sometimes rightly so, but often unfairly or in ways that are exaggerated or reflect or are driven by a political agenda. There are examples of over-correction where small misjudgments have become capital offences.

To put it another way, historically, employees in the workplace were in fear of their line managers. Today, as often as not, managers are just as fearful of their staff and the allegations that they may make. Be wary of those 360 degree appraisals!

Outside of the field of misconduct, many executive terminations are amicable because the employees have reasonable built-in contractual protections and neither party will benefit from a dispute. However, when cases about dismissal do get hot they often involve allegations of discrimination or victimisation of employees for whistleblowing.

Cynics might say that these cases get manufactured because the awards are uncapped and the only other statutory remedy of unfair dismissal protection remains capped at just below £100,000 in most cases, although in Jones v JP Morgan, we got around that by obtaining an order for re-engagement for him. That cynicism is largely not justified in our view: unfortunately there is still a lot of prejudice around, especially towards women returning from maternity leave. There is also scope for more cases to be brought by men objecting to “positive discrimination” limiting their careers. There is no question that the emphasis being placed on PLCs to ensure that their boards contain a good representation of women and are generally diverse, combined with a desire that the gender pay gap be addressed, is leading to some promotion and termination decisions that are causing men to suffer unlawful prejudice on the grounds of their gender. The most high-profile example of this involved three public school educated, male, heterosexual executives at the advertising agency Wunderman Thompson who successfully argued that their gender caused them to lose their roles when their manager said that they needed to “obliterate” the firm’s image of being full of straight, white men. Another example of “over correction”?

There has been much debate in the employment field about attitudes towards gender identity. Whilst there have been precious few cases brought by people who have transitioned or in the process of undergoing gender reassignment in recent years, by contrast, people siding for and against JK Rowling and others in the debate about self-identification has generated a rich stream of work, triggering interesting debates about what kinds of belief warrant protection under the Equality Act. We have seen vegans and people with “gender critical beliefs” achieve that protection, most notably in a case involving Maya Forstater, who had vocally advocated a belief that biological sex was immutable and had lost her job in a think tank as a result. This line of work has some way to run.

There are, however, potentially some dark clouds on the horizon. The proposed abolition of retained EU law is an issue for all workers and employers but for this area of practice the biggest concern is the latest iteration of the Conservative Government expressing scepticism about the benefits of conferring statutory employment rights on senior executives, by which they seem to mean employees earning more than £100,000 per year. Whether this populist approach goes anywhere remains to be seen. The reality is that the people who have the most to blow the whistle about and the most to lose if they are victimised for doing so are our clients. They need the protection and society needs them to be protected. In a similar vein, could it really be right to prevent senior women from bringing sexual harassment claims?

Either way, as one door closes, another opens, and the lifting of the cap on bankers’ bonuses could reignite an area of disputes that had been dampened by regulation for years, namely that of bankers and others complaining that they have been awarded too little for their efforts following the financial year end.

Further, there will always be fights about misuse of confidential information, team moves, breaches of non-competes, non-solicitation clauses and so on.

The reality is that where there are employers and employees, there will be disputes. The nature of those disputes will change with culture and regulation, but human nature is seemingly immutable.