Many HR directors and general counsel will know this only too well. In recent years many companies have begun to realise just what a headache employment law can be.
A growing awareness by employees of their legal rights and an increasingly litigious society means that the UK employment tribunals are full to overflowing. And with a
host of new legislation being passed each year, employment law can be very difficult for the HR department to keep track of. Its a volatile mixture. The constant changes to legislation is a big issue, says Graeme Denison, the general counsel at Caledonia Investments. Were embarking on an exercise to review all documentation and procedures simply because they get out of date so quickly.
Most law firms which are always on the lookout for new business will offer free briefings, seminars and websites with a great deal of background information for little or no charge. But key to the issue is making sure that information is current. Advice received six months ago may not apply today in some situations it will be outdated in significantly less time than that. The point is that youre required to keep up with ever changing legislation, says Denison. Today it might be disability discrimination, tomorrow it could be age discrimination, and in five years time it will be something else again.
But it does seem that firms are starting to take matters into their own hands with many companies realising just what a big help an in-house lawyer can be. Mark Hewland, employment partner at Simmons & Simmons, says: We receive more and more of our instructions from either in-house employment lawyers or heads of legal services, rather than being instructed by HR directors. Even with an in-house lawyer, however, companies are always going to need external advice. And theres no underestimating the benefit of a good law firm when you find yourself facing a legal suit.
Although every lawyer holds their own firm out as the best, all would concur that employment is one area where you just cant be too careful. And all would agree that prevention is definitely better and considerably cheaper than cure.
So which employment law firms is it better to have on your side in a legal action? Human Resources looks at some leading lights and their specialisms.
Simmons & Simmons
Specialism: financial, City institutions
and large corporates
Clients include: Associated British Ports, UBS
Simmons & Simmons is still recognised by many organisations as the best and longest-serving law practice. It is the only top 20 City law firm (in terms of size) that has
made employment a core specialism. Managing partner Janet Gaymer is seen as one of the Citys leading lights in employment law.
Back in the early 70s, employment law was just an element of commercial law and litigation, says one of the firms employment partners, Mark Hewland. But that has since changed. Under the leadership of Gaymer the unit was bolstered and employment law became a core specialism.
As well as the employment team made up of five partners and around 25 assistants, the firm also has separate pensions, employee incentives and benefits teams. Between 70% and 80% of Simmonss employment work comes from financial institutions, as well as big corporates. Almost all of the work is respondent (that is, the firm acts for employers rather than employees), although it will occasionally act for high-profile individuals.
Simmons tends to act for a lot of our peers, said a source at one of the large investment banks. Theres a huge number of pieces of legislation that we have to work as hard as we can to stay on top of. It not only
keeps us updated on all of that but also is aware how the legislation will affect a big financial institution such as ourselves.
Investment banks have hit the headlines in recent years in relation to a number of massive employment disputes most often relating to discrimination issues. But its
important for those in charge of both the legal and HR function in these organisations not to get too bogged down learning the ins and outs of just one area of legislation.
Its dangerous to lend too much weight to any one piece of legislation, the investment bank source says. Because if you do, you can guarantee the next day youll have a problem in a totally unrelated area.
This is why Simmons, along with most other firms, will run seminars and workshops for clients. Simmons also runs regular focus groups with clients to canvas their views for submissions the firm regularly makes to the Government in relation to forthcoming employment legislation.
Specialism: large corporates and discrimination cases
Clients include: BUPA, NTL, Sainsburys
In years gone by barristers were only ever called in by solicitors on a clients behalf and only when they were needed on litigation advice. But that is beginning to change rapidly. Cloisters is one of the few barristers chambers that has fully realised the potential of cutting out the solicitor as the middle man and dealing with
Among a host of other corporates, the Cloisters client list includes NTL, Sainsburys and BUPA (which sent the team 98 employment cases in the last year alone). The set is also renowned among the Citys largest law firms and other institutions for handling sensitive discrimination claims.
Because it now deals with a number of clients directly, Cloisters not only offers litigation services, but also acts as advisers a role that has traditionally been the domain of solicitors. I have a good relationship with Cloisters, says Richard Lowe, an in-house lawyer at Sainsburys. I can just pick up the phone and bounce ideas
off them. Theyre particularly good on discrimination matters, he adds.
Practice director Gerald Newman (who, appropriately, is a solicitor rather than a barrister by background) says: Currently were mainly instructed by in-house counsel, but were open to instructions by HR directors as well. The level of knowledge [of employment law] within
companies has increased quite significantly in recent years.
Of Cloisterss 41 barristers, 30 are in the employment team. In the past couple of years the team has been involved in five out of the seven employment and discrimination cases on which the House of Lords
One particular case of note is Rutherford & Bentley v Harvest Town Circle. This was a successful challenge by barristers Robin Allen QC and Rachel Crasnow to the current employment protection age limit of 65. As a result the Government announced plans to abolish the rule, which affects up to 800,000 people.
Age discrimination is a key new piece of legislation for employers, Newman says. Although new legislation doesnt take affect until 2006, most lawyers will tell you that this law is going to have one of the biggest effects in the next few years. Not least because most employers are unaware of its significance.
Specialism: financial and professional services and technology companies Clients include: Robert W Baird, Broadview International, BHP Billiton, The College of Law
It would be easy for those not particularly familiar with employment lawyers to think that niche City firm Fox Williams was the new kid on the block as its only been in existence since 1989. But those who mistakenly think that this five-partner employment team is anything other than streetwise will be in for a surprise. Despite its size, this team has considerable clout and its founding partner Ronnie Fox and head of employment Jane Mann are a daunting combination for those sitting on the other side of the negotiating table.
Acting for a combination of both applicant and claimants, employment is a core area for this niche City firm over 30% of its lawyers are employment lawyers, one of the highest ratios youll find in the City. It has traditionally specialised in the financial services, professional services and technology markets. Theyve got their finger on the pulse, says Marcia Oliver, general counsel at Visit Britain (formerly The British Tourist Authority). Oliver initially turned to the firm after attending a number of its breakfast briefing seminars. We needed some expert advice in relation to TUPE so we gave them a try, she says.
Fox is perhaps one of the few employment lawyers in the City who was previously a mergers and acquisitions (M&A) lawyer. (The corporate partner and his employment counterpart are regarded as a breed apart by most City lawyers.) But it was actually his experience in acquisitions and disposals that saw Fox make the transition from being one of the M&A masses to becoming one of the most highly regarded lawyers in the employment arena.
Whenever theres a merger or acquisition, people will leave or people will be recruited, he says. I became interested in what happened to them golden handshakes and severance packages and so on. And so his interest in boardroom disputes and employment law was born. And what he thought might prove to be a nice sideline to corporate work, was soon the focus of Foxs new firm.
Manns arrival in the employment arena is something of a different story. She was one of the first true employment lawyers, Fox says of his colleague who heads the employment law team. Along with Fraser Younson (see box) and Simmonss Janet Gaymer, Mann was responsible for forming the Employment Lawyers Association. Earlier this year, she led the team that advised City bond trader Kerim Derhalli in his 10 million constructive dismissal claim against Lehman Brothers believed to be one of the largest ever single claim employment cases in British history.