Protected Conversations - Carl Fender - Barrister at Regency Chambers

Is the Government's alternative to compensated no-fault dismissals really worth the candle? Having decided to drop this idea, the alternative of 'protected conversations' is to be put out for consultation. The CBI supports the proposal. The idea amounts to 'without prejudice' discussions about an employee's performance in the workplace, and preventing what has been said being used against the employer in, for instance, a constructive dismissal claim. This proposal is just one of several ideas being considered to free our employment laws of so-called red tape.

One does wonder if what is driving reform of our employment laws is more perception than reality. Employers are quoted as being fearful of expensive and time-consuming litigation as a result of dismissing poorly-performing staff. The existing legislation around dismissals for capability is couched in terms of reasonableness. Employers running their businesses efficiently should be able to demonstrate whether or not employees are meeting required standards in performance. The raising of the qualifying period for bringing an unfair dismissal claim to 2 years should be enough reassurance for employers if they feel our present laws disincentivise recruitment.

Although the detail of any proposed legislation has yet to be finalised, one can see much satellite litigation resulting from what is/is not a 'protected conversation'. Reducing claims to the tribunal is another aim of the raft of reforms that are going through or are under consultation. Will the number of claims being presented reduce because of this particular proposal? An impact assessment already sees a reduction because of the raising of the qualifying period. Others see litigants using discrimination or automatic unfair dismissal grounds where they are time barred. It is certainly arguable that whilst 'protected conversations' might provide some immunity to employers in respect of particular occasions when discussions occurred, they are unlikely to encourage conciliation or loyalty. An employee who has had the Riot Act read to them, and who knows they cannot immediately resign, is hardly likely to feel valued or incentivised to work. 

The Law of unintended consequences - Nigel Sleight - Barrister at Regency Chambers

The Law of unintended consequences

Last week I was involved in a very difficult final hearing involving parents arguing about residence...my client was represented the other side in person. During the hearing a number of things became clear as to the effects of the planned cuts to Legal Aid. Some of course are the more obvious which have been well documented e.g. Increasing the length of court hearings but a number of other things became clear:

1. Neither side would be eligible for Legal Aid in the case yet equally neither would have been able to afford any kind of expert assessment which happened to be vital in this case to help understand the needs of the child. What does the court do in those circumstances?

2. A way around for the problem above is for the court to appoint more Guardians under R16.4 and for the experts to be paid for on the legal aid certificate of the child - thus just transferring costs not saving them and meaning the appointment of more Guardians to try and assist the courts between parents.

3. Those cases that will in the future not have the assistance of legal representation are also likely to result in more professionals involved in cases e.g. Social workers - being called to give evidence as it will be less likely the parents (for very obvious and natural reasons) will be able to do without their evidence as they feel they will have to explore every issue so they do not feel disadvantaged - not necessarily upon what the key issues in case may be.

I'm sure there are many more.....

Change to qualifying period for unfair dismissal claims - Carl Fender - Barrister at Regency Chambers

As part of the Government's drive to cut red tape for business and encourage growth in the economy, there is to be a rise in the qualifying period for brining a claim for unfair dismissal.  It is currently 1 year, a period the employee must have worked continuoulsy for by the effective date of termination.  From the 6th April 2012, that period will return to 2 years, the level it was until 1999 when New Labour lowered it to its current position.  The new legislation will amend the law as stated in s.108 of the Employment Rights Act 1996.  There are no proposals to alter the right to claim automatic unfair dismissal on other protected grounds, where there is no qualifying period.

The qualifying period has changed over the years since its inception in 1971.  It was initially 6 months, reaching 2 years in 1985.  It has been the subject of litigation as well because previous rules on qualifying thresholds for part-time workers were found to be indirectly discriminatory against female workers.  However, a challenge to the earlier 2 year period in R v Secretary of State for Employment ex p. Seymour-Smith, after a legal journey all the way to the House of Lords, then Luxembourg and back, ultimately failed.

It could be said that this is not really about cutting red tape per se. The rule was simple to apply whatever the length of the qualifying period.  Encouraging employers to take on more employees by deregulating the early phase of employment as well as reducing the number of claims presented to the Employment Tribunal is what this proposal is all about.  This is just one of a number of proposals, each of which have their own time-scale.  There are proposals in respect of introducing a basic fee structure for tribunal claims, for example, as well as other measures to speed up the tribunal process.  The Government's consultation document, published in January 2011 sets them out.  Arguments against implementation are partly based on a battle of statistics.  There are also fears that disqualified claimants will simply re-locate their claims within the discrimination legisltation.  Whatever the opposition, the Government is intent on driving through business friendly measures to stimulate the economy.

Public/Press Awareness - Nigel Sleight - Barrister at Regency Chambers

Public/press awareness....

Over the past few days there has been an awful lot of commentary on the Famiy Justice Review and what it may mean in practice. Some of the more emotive headlines such as 'Grandparents denied access rights' are clearly misreported. Firstly they have not been denied any such 'right' in the review rather it has stated that it does not make any recommendations to alter the existing law which would already allow a grandparent to bring an application for contact or residence with the leave of the court.

The comments made on a number of articles that have appeared in the paper [e.g. by Joanne Edwards appearing to today's Observer:

http://www.guardian.co.uk/commentisfree/2011/nov/06/legal-aid-families-joanne-edwards?newsfeed=true]

show how varied the responses are to the two key issues of the moment i.e. reforming family law and the cutting of legal aid. The inherent tension between the Governments aims is clear but it is also the case that these implications are being missed by the wider public. By way of example (and it is purely ONE example) many fathers are writing that they are disappointed the Review did not make a recommendation for 50:50 care of children when couples separate yet at the same time are pleased legal aid for such disputes is being severely curtailed (on the basis it is women who are more likely to qualify for Legal Aid).

However two huge things seem to be constantly overlooked:

1. The same father who is accused of domestic violence will himself not be eligible for Legal Aid to defend himself against allegations (irrespective of their means)

2. Any father being forced to bring a contact/residence application will have a much longer ride through the courts clogged up with litigants in person!

"It's Just Not Cricket" - Gareth Jacques - Barrister at Regency Chambers

For my second post of the day, I thought I'd comment on one of the days biggest news pieces, and a sport very close to my heart.

The sentencing took place today of 3 Pakistani cricketers and a sports agent for match fixing. The 4 men appeared before Mr. Justice Cooke, at the Southwark Crown Court for sentencing following a lengthy trial of 3 of the Defendants which culminated in guilty verdicts being delivered on Tuesday. (The agent having plead guilty at an earlier hearing).

The charges stemmed from match fixing allegations with regards to the 4th Test Match of the summer 2010 series of England v Pakistan. An undercover reporter for the News of the World filmed the sports agent, Mazhar Majeed predicting exactly when 2 Pakistani bowlers would bowl no balls and collecting 150,000 GBP in cash as a result of the prediction.

The bowlers found to be guilty of bowling the no balls were Mohammed Amir and Mohammed Asif. The trial had heard that the chances of someone correctly predicting when 3 no balls would be bowled was around 1.5 million to 1.

The team captain at the time, Salman Butt was also found guilty of match fixing, as he was paid to ensure that the correct bowlers were bowling at the right time.

Sentencing all 4 defendant's to immediate custody, Mr. Justice Cooke said:

"The image and integrity of what was once a game but is now a business is damaged in the eyes of all, including the many youngsters who regarded you as heroes and would have given their eye teeth to play at the levels and with the skills that you had".

Salman Butt was sentenced to 30 months in prison, Mohammed Asif 12 months, Mohammed Amir 6 months and Mazhar Majeed 32 months.

As Mr. Justice Cooke remarked "It's not cricket" - and it's certainly hard to disagree.

Family Justice Review - part 2 - Nigel Sleight - Barrister at Regency Chambers

It's fine in theory....

Reading through the family justice review in more detail this afternoon I noticed that one of the key aims of better judicial case management was to give the judges more reading time of the papers. For those of us at the coal face we are all too aware of how the Judiciary don't have enough work to do, how the DJ's complain all the time about quiet s8 lists where no-one is waiting to see a CAFCASS Officer. How fortunate we don't have an ever increasing number of litigants in person. No doubt the governments timing of withdrawal of Legal Aid and cutting fees to experts (note to self: must start search again for a paediatric radiologist tomorrow who will work at the new LSC rates!) is all part of some master plan to help the smooth implementation of the proposed reforms.....

Being serious though the FJR highlights the lack of clear research/evidence on various aspects of the proposals it makes. On the issue of the recent expert rates set by the LSC I would be interested to hear the experience of other people so far in getting experts to undertake the work.

Family Justice Review released today - Gareth Jacques - barrister at Regency Chambers

Thursday, 3 November 2011

Family Justice Review released today - 3/11/11

My first post, and on a day when I can actually post something interesting!!

The final report of the Family Justice Review was released this morning.

Will this be good for Family Law as a whole? My guess is we will have to wait and see.

The key "headline grabbing" points seem to be:

• A recommendation to "bin" residence and contact orders, but replace them with "Child Arrangements Orders."
• A new two track system for family cases should be implemented "simple" and "complex" - and the level of Judge needed for the case will be determined on the cases track allocation.
• A new Family Justice Service will be established which is to be responsible for the budgets of court social work services, mediation, out of Court resolution services and it is thought that in time it will be responsible for budgets in relation to the instruction of experts and solicitors for the children.
• The same Judge should have conduct of the case all the way through.
• A single Family Court system should be set up where all levels of the judiciary sit in the same building (i.e. Magistrates, DJ's and CJ's)
• The High Court will remain for complex cases, but High Court Judges are going to be encouraged to travel to the single Family Court point to hear their cases.
• In all but exceptional caes, Care Proceedings must be concluded within 6 months of them commencing.
• Experts will only be instructed in cases where their involvement is necessary to conclude the case, and the impact of delay to the child (when instructing an expert) should be considered even more than it currently is.
• A new online hub for starting divorce proceedings will be established.
• Parents will be encouraged to resolve disputes regarding their children outside of Court.

 The full report can be found at:

http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-final-report.pdf

My thoughts on the report to follow soon...

Family Justice Review - by Nigel Sleight - barrister at Regency Chambers

Thursday, 3 November 2011

FAMILY JUSTICE REVIEW

FAMILY JUSTICE REVIEW

PART 1 : PUBLIC LAW

So...the much awaited final report of the ‘Family Justice Review’ has been published today. It is not light reading stretching to some 226 pages full of detailed analysis and recommendations. The report is essentially divided into 3 areas:

·         The family justice system

·         Public Law

·         Private Law

Over the coming days and weeks I will attempt to sketch out and consider the main recommendations and implications from the report. Today I intend to focus upon the recommendations about Public Law.

However it is worth first considering the proposed context within which these proposed reforms may take place.

 In the forward to the Review  David Norgrove comments that:

“We found general agreement with our diagnosis: a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works. The consequence for children is unconscionable delay that has continued to increase since we began our work. The average care case in county courts now takes over 60 weeks and many take much longer – an age in the life of a child. These delays contribute to the 2 years 7 months it takes on average for a child to be adopted. With 20,000 children now waiting for a decision, delay is likely to rise further.”

The Panel found that there was a substantial lack of joined up thinking between the various parts of the family justice system, no clear accountability between different organisational structures. The huge concern noted about the delay of decisions for children in care cases (now apparently having risen to over 60 weeks) feeds into the wider point about delay for children who have a plan of adoption. Unsurprisingly this chimes well in terms of timing for the current debate about how to reduce that delay for adoption.

So in summary it is clear that the idea of providing a unified approach to family law (through it’s various organisations) reducing delay and of course putting the welfare of the child at the centre are the various strands that underpin many aspects of the recommendations.

I will deal in a later blog in more detail about some of the organisational/structural proposals being made. However the key recommendations appear to be:

·         The establishment of a ‘Family Justice Review’ which would have responsibility for the whole of family justice (including the courts and court social work services (i.e. formerly CAFCASS). It also suggest (given it is proposing that this FJS be responsible for the budgets of courts etc) that in time there may be ‘potential’ to manage the supply of expert witnesses and solicitors for the children.

·         The appointment of a Vice-President of the Family Division to better support the President. Greater leadership roles and monitoring.

·         Aim of Judicial Continuity in all Cases [That of course has always been the laudable aim but manifestly difficult to achieve in practice] It is proposed that this could be assisted by encouraging Judges and Magistrates to specialise in family matters.

·         The idea of a Single Family Court which would be the only point of entry [save for the High Court point below] to replace the current 3 tiers of court. All levels of Judiciary (i.e. Magistrates, DJ’s and CJ’s) would sit in the family court and work allocated according to complexity. The report does however suggest that the Family Division of the High Court remain to deal with inherent jurisdiction and other international work. In the more complex care cases/private cases it is proposed they still be in heard in the single family court but by a High Court Judge.

Whether any of these structural changes can/will be achieved remains to be seen (as does the timescale) given on the idea of a FJS the recommendation is prefaced with the fact that ‘Any structural change will require investment. We understand that no new money is available to fund change before 2014/15’ and on the idea of a unified court ‘Capital investment will be needed in the longer term’.

PUBLIC LAW PROPOSALS

The detail of the reforms are set out at p91 onwards.

For those working in the care system some of the identified concerns are obvious e.g.

·         Delay

·         Local Authorities waiting too long before an application is made to the court

·         Quality of social work evidence is not consistently good, fuelling distrust and a consequential over-reliance on multiple expert witnesses.

In making the recommendations it does, the report identifies the key tension that is the everyday experience of those in the care system: balancing the delay/outcome of the child as against the rights of the parent(s) to have a fair hearing and seek to continue for their child in the long-term. There is a clear drive in this report to try and redress that balance back towards quicker outcomes for children. One can see that if implemented it will provoke much debate in the wider public and if time-limits are set is going to cause conflict for the appellant courts from parents who feel they have not had a fair or proper assessment [all of which can only be amplified by the cutting of Legal Aid funding for experts].

Key Proposals

(1)    The Court

·         Still determine whether the threshold is made out. A re-focus however on the core issues of whether the child is to live with parents, other family or friends, or be placed in the care of the Local Authority, contact with the birth family.  Other aspects of the plan should be the responsibility of the Local Authority.

·         The review goes on to list areas that it would not expect the court to examine e.g. whether it should be residential or foster care placement, therapeutic support for the child, contingency planning. However it then states the proposed changes will have no impact upon placement applications as when adoption is in the care plan the matter will still be the full scrutiny of the court.

One can foresee huge problems with this. On one level it appears to be over-simplistic as very often a child in proceedings may have a whole range of specialist needs which would inform whether or not adoption or foster care is the right outcome for that child. It would seem odd that a court should have to determine issues such as those in the context of possible adoption without perhaps looking at the alternatives for the child e.g. residential placement under a Care Order. The review correctly points out that many Plans change for children particularly if in care for many years. However my experience is that the courts are already full aware that Care Plans are not static and that once final orders are made it is for the Authority to exercise its PR under the plan. However what the courts strive to do is ensure that when the final orders are made the Care Plan is as robust and as clear as it can be to provide the best chances for that child to thrive in its future.

[Part 2 of Public Law to follow tomorrow]

Leaked Beecroft Report - Carl Fender, Barrister at Regency Chambers

Our employment laws on unfair dismissal seek to strike a balance between both sides of the employment relationship.  Nowhere is this seen more starkly than in the employment tribunal itself, with employer and employee representatives providing valuable lay experience from their own workplaces.  The leaked Beecroft report on reform of our dismissal laws has caused reaction from both sides of the debate.  In particular, the Government has been advised by the report's writer (a City businessman) that businesses face disproportionate difficulties in removing unproductive staff. The cost to businesses in defending unfair dismissal claims is excessive and there ought to be a faster and more cost effective means of removal of such staff.

Is this not an example of opportunism in the current financial climate?  Surely the same argument could be made in times of economic prosperity as well, but has not been.  We have a law that permits an employer to dismiss for an employee's lack of capability and underperformance in s.98 Employment Rights Act 1996.  If businesses are being run efficiently, and employees being managed appropriately, employers should be able to prove a tribunal subsequently that its decision to dismiss was the correct one.  Would this proposed new law not also contribute to employees feeling less valued i the workplace?  Employees who feel valued in the workplace, and are supported by employers through good management, are more likely to be better performers.  Arguably these new proposals tip the balance too favourably towards employers.