EMPLOYMENT: An Introduction to London (Firms)

Cultural Change and Regulatory Creep

For some years now, it has been cultural change and regulatory creep rather than legislative innovation that has been driving a constant diet of assisting senior employees handle themselves through investigations and disciplinary hearings (often for sexual misconduct). This new stream of work has sat  alongside handling the inevitable severances and disputes that occur between highly paid employees, such as senior executives, bankers, investment managers, lawyers and consultant doctors and their employers.

The impact of #metoo

So many years after they occurred, the impact of the Harvey Weinstein allegations and the #metoo movement still cannot be overstated, especially when combined with the interest they have piqued in regulators about sexual misconduct by people in senior positions in particular. That is especially the case with the Financial Conduct Authority and the Solicitors Regulation Authority. Actions that were once brushed off if not laughed off, or the cause of a slap on the wrist at most, have become career defining moments for senior (often older male) employees, as we have seen time and again in recent years.

Culture wars

The culture wars are also banging on the door of the workplace with issues around gender identity, the wars in the Middle East and Ukraine and all manner of other differences causing ever more fractious workplaces between colleagues encouraged to bring their whole selves to work.

With the stakes so high, clients rightly seek advice at a much earlier stage than they would have done historically.

A sea change in the legislative framework

However, it is the election that has signalled that there will also now be a sea change in the legislative framework with proposals to bring consultants as well as workers into the full realm of employment protection; immediate protection from unfair dismissal for all workers from day 1; the ability to claim for discrimination on the grounds of the combination of protected characteristics, such as race and sex; a tightening up of protection for whistle-blowers; a mandatory duty on employers to take reasonable steps (to be upgraded to all reasonable steps) to prevent harassment, including harassment from third parties like customers; a right not just to ask for flexible working, but to get it; and a right to switch off, to name but a few.  With two-year qualified lawyers at some US law firms now earning GBP240,000 per year. I am not sure how well a refusal to take a call at 6pm on a week-day is going to go down.

Gender Pay Gap Reporting

If ever there was someone who understood the power of PR, it was David Cameron. Hence whilst lawyers doubted the impact of the law on Gender Pay Gap Reporting, not least because there was no sanction for non-compliance, they forgot that for many businesses the biggest penalty can be a bad look. It is extraordinary the change that such reporting has heralded. Boards have a new level of determination to bring women into more senior positions often with a level of zeal that means the men they replace or who miss out on promotion have sex discrimination claims. A fight back against a perception of over-correction is with us.

The same pattern now looks likely to repeat itself with plans for Ethnicity and Disability pay gap reporting.

Non-competition clauses

Separately, over in the US, there has been a renewed focus on whether non-competition clauses should be enforced with the Federal Trade Commission seeking to ban them.  The former Government had made a proposal to confine them to a period of three months, but that seems to have died with the change of Government, so that seems to be one area of law that will remain stable.

Reviving the bonus claim

Further, with the removal of the cap on banker’s bonuses, we may yet see a revival of the bonus claim - once a rich source of work for those advising highly paid employees.

A wide range of issues

In addition to all of these new causes of action and the return of old friends, employment lawyers continue to be called into assist with issues ranging from negotiating new contracts and contesting team moves to arguments about psychiatric injury caused by work, insurers not paying the benefits they should for those on long-term sickness leave, and of course disputes about severances that have no harassment or bullying element.

An ever-growing number of cases

So, whilst many predict that AI is going to change the way the law works immeasurably and cause lawyers to lose their jobs over the next year, to counteract that there is going to be an ever-growing number of cases for solicitors acting in high-value, high-stakes cases to handle piled on top of an existing heavy workload. For the moment at least, employment lawyers, if no one else, can rest easy in their beds. The work from new and existing streams of work will outpace any erosion of their practice caused by technological change. For now, at least.