The Supreme Court’s invitation to businesses and charities to fight discrimination is at odds with its findings that specialist volunteers are not protected by anti-discrimination legislation, say Declan O’Dempsey and Olivia-Faith Dobbie
Last week’s religious discrimination ruling marks a turning point for human rights in the employment sphere but further clarification is still needed on the reach of the justification defence, says Darren Newman
Elaine Gray believes the Channel Islands present an attractive destination for businesses’ employment functions. Could outsourcing to Jersey and Guernsey mitigate unfair dismissal claims and what are the relative risks?
The decision to allow a lapdancer employed through a succession of contracts to bring an unfair dismissal claim has widened the definition of employee, but may not readily transfer to more mainstream occupations, says Anna Macey
The introduction of the right to be forgiven could be a major step towards reinforcing the privacy rights of former offenders, but how effective will the new right be if there is no consensus over its scope? asks Richard Easton
The Supreme Court’s latest ruling on the lawfulness of age discrimination failed to provide ready-to-use guidance but it nonetheless offers useful pointers on how employers and tribunals should approach objective justifications depending on circumstances, says Malcolm Sargeant
The Supreme Court decision refusing a dismissed employee compensation for the way he was sacked provides a further prompt to review the interaction of employment legislation with common law remedies, says Catriona Stirling
Increasing the qualifying period for dismissal and introducing fees for tribunal litigation have caused concern in the employment law community, but are the proposed government reforms all bad? James Davies says the proposals contain some useful ideas, as Jane Wheeler welcomes process improvements, but Edward Cooper warns about possible abuses
Equality guidelines on hiring and retiring solicitors form part of the new Solicitors Code of Practice, but don’t forget to look out for the outcome of Seldon - it should bring further clarity to age discrimination legislation, says Anthony Philpot
Doubling the qualifying period for the right to claim unfair dismissal and introducing tribunal fees will not help businesses – it will only deprive employees of their rights and make it easier for employers to sack them, says Anya Palmer
Sundeep Bhatia chronicles the woes of a profession getting to grips with diversity
17 January 2012 – Tackling the JAC selection process
Some of you may have read my earlier blog post about the lack of BAME lawyers among the judiciary and about the need to increase their presence.
From my interaction with the Judicial Appointments Commission, as a former chair of the Society of Asian Lawyers, I believe that the JAC is doing all it can to publicise posts and to encourage BAME candidates to apply for such posts.
I therefore believe that the onus is on the individual to equip him or herself, as best they can, to take on the onerous selection process. The hints I give below come from hearing several successful candidates speaking about their preparation and from personal experience at completing the application form.
The first thing I would urge anyone considering applying would be to go to the Judicial Appointments Commission website and to download an application form for any current selection exercise.
The forms for most selection exercises are broadly similar and explanatory notes can be found online. The forms identify characteristics that successful candidates are expected to have and ask the candidate to explain and to give examples regarding how they possess those characteristics. These include intellectual capacity and authority and communication skills. Examples can be given from any aspect of one’s life including social, religious and voluntary.
If you are thinking about applying in the future then you should print out a form and make a note of the characteristics. You should then keep a diary each day, giving examples as to experiences you have had fulfilling these characteristics. Then, when you come to fill out an application form, you will have a range of first-rate examples to choose from. Under no circumstances should a candidate leave completing the application form until just before the closing date.
If a form is completed then retain a copy so that you can update it with fresh examples.
Do make sure that you only apply for posts where you actually stand a chance of being selected. On the website you will find a note of what kind of candidate the JAC are looking to appoint.
Normally those appointed to full-time posts will be selected from those who already have part-time posts.
Always do your homework. Revise or educate yourself regarding the appropriate area of law.
Learn to type! You will need to do so in order to complete the examination paper as it moves online.
Print off, study and complete the past papers that can be found online. They are accompanied by notes regarding what model answers should contain.
Carefully select your referees. If your referee is a Crown Court judge who barely knows you, then such a referee is worse than useless.
Consider spending money on a course preparing you to deal with paper and interview selection. That will give you a headstart over other candidates.
Apply for any pseudo-judicial positions involving, for example, school governing bodies, adjudicators, ombudsmen or prison governing bodies. Such experience will make you more attractive to selectors and will differentiate you from other candidates.
Finally, put yourself forward for judicial shadowing schemes. This is the best way to understand what a particular judicial post entails, and, thus, how best to prepare for selection.
I hope the above inspires some of you to apply and I wish you luck!
28 November 2011 – Stopping the exodus of BAME firms
As the end to another year approaches it is time to take stock. My overwhelming emotion is one of relief. I am still in private practice. I still have my own firm. I was able to secure (relatively) affordable professional indemnity insurance. Yet I have to admit to being full of dread for 2012.
My greatest fear is for the future of small BAME-owned firms who specialise in criminal defence legal aid work. I state this as someone who has conducted such work since 1994, who has owned his own criminal defence firm, and who continues to conduct such work as a solicitor advocate for Julian Young and Co Solicitors in Marylebone.
I am concerned about the effects that planned reforms will have on diversity within the profession since a disproportionate number of BAME solicitors work in such smaller firms. Half of solicitors from black Asian minority ethnic backgrounds work in firms of four partners or less; the figure for white Europeans is just under 30 per cent.
Before the end of the year yet another consultation paper on the introduction of price competitive tendering, with respect to criminal defence work, will be published. The consultation paper will be in relation to introducing a scheme whereby firms will compete to put in tenders to conduct criminal defence work at the lowest price.
The government has attempted to introduce price competitive tendering several times since 2005 but without success. One of the biggest arguments against doing so was the effect that the reforms would have on diversity within the profession. However, Kenneth Clarke, the Lord Chancellor, has indicated that such an argument does not interest him.
In a letter in October to Peter Lodder QC, at the Bar Council, Mr Clarke stated that ensuring equality of opportunity across the profession was a matter for the Bar Council and Law Society, and was not the primary responsibility of the Ministry of Justice.
Criminal defence firms are also threatened by their regulator, which risks endangering the future of solicitor advocates with higher rights in the criminal jurisdiction, as the result of a badly drafted and ill thought out plan to introduce a Quality Assurance Scheme for Advocates (QASA).
The scheme, as currently drafted, will mean that solicitors can no longer take for granted their right to practice in the magistrates' court with the prospects of losing their statutory rights of audience there five years after qualifying.
Solicitors will also be unable to escape some element of judicial evaluation. At present most Crown Court judges are from the Bar and Judge Gledhill's comments in 2010 will worry most solicitor advocates as to the impartiality of some judges.
At present solicitor advocates, who do not do trial advocacy, will be unable to deal with stand-alone plea and case management hearings or sentencing hearings without having the requisite qualifications to deal with the trial itself. That will drive many small firms out of business since, with legal aid cuts, firms rely on keeping some advocacy in house in order to stay in business. The extra cost of instructing counsel may well be the straw that breaks the camel’s back.
Moreover, where a trial advocate is unavailable the person best placed to put forward the client’s case, at an administrative or sentencing hearing, is the instructing solicitor rather than stand-in junior counsel who may have little knowledge of the case. Clients are therefore likely to suffer unless the scheme is heavily amended.
In the face of such bleak news it is easy to throw ones hands up in despair. However, there are still many battles to fight and if all solicitors affected did something productive to defend the future of legal aid then, just maybe, the government could be made to think again. I will play my part by responding to consultation papers and by making representations within the Law Society council and via representative organisations such as the Solicitors Advocacy Higher Courts Association (SAHCA), which has waged a strong campaign against QASA that has caused the SRA to consult further.
Apathy is not an option in 2012.
I wish all of you, your families and loved ones a very happy and peaceful holiday season.
26 October 2011 – Inspiration, aspiration and a white turban
With four judges from minority backgrounds standing up to talk about their paths to law, the ‘Inspiration’ evening last month certainly lived up to its billing.
Part of Black History Month the event brought together Dr Fayyar Afzal OBE (partially sighted), deputy district judge Wright (a mother of three), Crown Court judge Her Honour Judge Dangor and newly appointed High Court judge Rabinder Singh QC.
Rabinder Singh QC’s appointment is the result of hard graft, ability and success in presenting some of the most complex cases rather than on account of his ethnic makeup. His mantra, he said, was to make his parents proud of everything he did – which somehow backfired when he told his mother about his appointment as deputy High Court judge. “The only person who was unhappy was my mother. She thought why do they consider my son only good enough to be a deputy?”
It was the second time that I had seen Rabinder Singh in 11 days. On 3 October I attended the Opening of the Legal Year in my capacity as Law Society council member. From where I was seated all I could see was a sea of wigs stretching out into the distance. Suddenly that sea was broken by one solitary white turban. Rabinder Singh QC, I thought to myself.
After the service had finished the whole congregation stood up while the judges filed right by where I was seated. As they did so I could see their faces. There were only a handful of judges present from black and Asian backgrounds and the only BAME High Court judge was indeed Rabinder Singh.
Later in Westminster Hall I had a brief word with Lady Hale, the only woman Supreme Court judge.
None of the Supreme Court judges are from black or Asian backgrounds. That is a cause for sadness. The judiciary should reflect the society that it serves. I am no fan of quotas but there are a large number of BAME barristers and solicitors equipped with the aptitude, ability and intellectual prowess required to be a successful judge.
The profession has been aware of the problem for a long time. The Judicial Appointments Commission was set up so as to increase diversity in the judiciary. When I was chairman of the Society of Asian Lawyers in 2008 to 2010, I worked with the commission to increase the diversity of applicants for judicial posts. One of my first tasks, in the days when Baronness Prashar was commissioner, was to introduce a workshop where prominent Asian members of the judiciary spoke about how they came to be judges. To hear them speak was inspirational. Three years on their stories are still inspirational, but we need more than talk.
There is now a new commissioner in place, Christopher Stephens, from a non-legal or judicial background, and I sincerely hope that the fresh ideas he brings to the commission will one day mean that the appointment of an Asian or black High Court judge will not be a cause for rejoicing but a regular occurrence. When that day comes, evenings such as ‘Inspiration’ will be aspirational rather than inspirational.
20 September 2011 - Gearing up for winter
Summer is over. A ten-week respite from the challenges of Chancery Lane is coming to an end. It is time to resume my role as a Law Society Council member. It will be hectic. It will demand my time and energy for zero remuneration(bar expenses) but I really cannot wait.
It is amazing how ignorant solicitors can be about the role of the Law Society Council. I only had the vaguest clue what Council did (prior to my election). My imagination ran riot about Papal White smoke arising when a new President was elected.
The truth is a lot more prosaic. Council members elect the Deputy Vice chair of the Law Society who, twelve months after coming to office, becomes vice chair and, twelve months after that, becomes president.
Every solicitor should know what the Law Society does. Otherwise our work is pointless and will give rise to solicitors emulating "Life of Brian" by asking "What has the Law Society Council ever done for us?"
Council is to solicitors what Parliament is to the good folk of this green (and sometimes) pleasant land. It even has its own mini House of Commons, situated inside the Chancery Lane headquarters of the Law Society and equipped with all the latest audio visual technology. Whenever a constituent speaks a six foot photo of them comes up on a giant screen. That tells you that council is not for the squeamish .
Council meets, on average, once every five weeks. Constituents are sent a vast bundle of papers, sometimes running to several hundred pages, seven to ten days before the Council meeting and this demands a good few hours of midnight oil burning (if you are conscientious).
The papers consist of a report of the chief executive and a selection of reports from Law Society boards for discussion and, thereafter, votes. The results of these votes will determine the future policy of the Law Society.
There are ninety three members of Council representing different constituencies.
The vast majority of those constituencies are geographical. Others represent lawyers employed in different areas of practice such as Employed Lawyers and The Crown Prosecution service as well as special interest groups such as Junior Lawyers and, my constituency, Black and Asian Minority Ethnic.
Attending the main Council meeting is just the start. Members are encouraged to sit on various boards and committees. Some of those positions, such as board membership, are voted on by council members. Others involve selection by a panel.
From this month I will sit on the Regulatory Affairs board which governs the society's relationship with the SRA. I am also a member of The Employment Law committee.That is a position I relish. We discuss and draft responses to government papers.
However my raison d'être is as a member of the Equality and Diversity committee. Here I sit with other council members as well as with academics and solicitors representing other heads of diversity such as disability, LGB (Lesbian, Gay and Bisexual) and gender. That committee meets several times a year and considers consultation papers on diversity while also recommending diversity-friendly steps for the Law Society boards to take.
During the last year we considered three reports on the problems faced by BAME (Black Asian Minority Ethnic), women and LGB solicitors. The three papers can be found on the Law Society website and are well worth a read. The staggering thing about the reports is that all three groups seemed to face similar challenges. Therefore a co-ordinated approach may help all three sections of our profession.
We have, for example, been considering ways of promoting flexible working through consultation with staff at the Law Society and other boards and committees. I ,for example, played a part in making representations on flexible working for the Employment committee in relation to a government consultation.
Allthough there are serious aspects to Council membership there are also social aspects. Council members attend a variety of lunches, dinners and lectures. As a result I have made good friends with solicitors who I would never have met otherwise. Seeing the world from their perspective enriches me both as a lawyer and as an individual.
Being a Council member also gives one the opportunity to rise to new challenges and to embrace new opportunities. Thus I am lecturing on the Bribery Act at an Employment Law conference at Chancery Lane on 11 October and, on 3 October, I will be attending Westminster Abbey for the Opening of The Legal Year and will be joining The Lord Chancellor for lunch.
31 August 2011 - The young ones
I recently bumped into a friend at Brent Magistrates' Court. Several years ago I had trained him when I had my own legal aid criminal practice, and he is now a seasoned criminal law solicitor at IBB Solicitors in Uxbridge and has a wife and young daughter. I am very happy for him and am proud to have given him the opportunity to get into the profession.
I was a sole practitioner trading as Brent Law Practice, my own criminal defence firm, from 1999 to 2006. The firm started off with just myself and my wife as practice manager. As the firm grew we advertised for solicitors and paralegals. In practice, rather than by any design, the applicants for vacancies tended to come from BAME (black and Asian minority ethnic) backgrounds.
Over six and a half years we gave breaks into the legal profession to budding lawyers from Arabic, Afro-Caribbean, Sikh, Jewish, Bangladeshi, Indian, Pakistani and, in one or two cases, British backgrounds.
I see several of them when I attend local courts. They are successful qualified solicitors, and it gives me a great deal of satisfaction to see how they have progressed in their careers.
I was given my big break by Mr Gopal Gupta of Gupta and Co, a small Harrow high street firm, back in 1994. Small BAME firms such as Brent Law Practice and Gupta and Partners have provided opportunities for many BAME solicitors to get started in the profession.
Of course when I was at Brent Law Practice I did not think of things in those terms as I was involved in the day-to-day worries any firm has of keeping afloat, ensuring cash-flow and making sure that staff worked effectively, conscientiously and competently. However, I now run my own civil practice single-handedly and am a consultant to the firm of Julian Young and Co. I can therefore see and appreciate the dedication of the young lawyers working there without any of those worries.
The barriers those young budding lawyers have to face, in an era of recession and legal aid cutbacks, are a lot worse than those I faced in the recession of the early 1990s.
Julian Young and Co is a partnership of Julian Young, a Jewish lawyer, and Judy Ramjeet, from the Indian sub-continent. In my mind it therefore qualifies as a BAME firm. The staff working there originate from all around the world including Greece, India, Pakistan, Bangladesh, East Europe, Mauritius and America.
Some are young barristers filling paralegal positions while seeking pupillage. Others are exchange legal students from the USA. One is a part-time community police officer. Another runs a family fish and chip shop while also trying to embark on a career in the legal profession. One qualified as a barrister, is a part-time Bollywood actress and is now on the verge of qualifying as a solicitor.
After practising criminal law for nearly two decades it is easy to become jaded when one deals with the umpteenth criminal damage case. Yet each time I visit the firm’s office in Marylebone I come away feeling re-energised and reinvigorated by the passion and enthusiasm of these young men and women.
I am instructed by two young members of the firm as solicitor advocate. I enjoy the legal and case discussions that I have with them which remind me of those I had with counsel at the start of my career. I teach them and help them in their role of preparing cases for me to present at court.
Recently Julian held a mooting competition for the staff. It was a great way for him to say thank you to his junior staff by passing on his professional knowledge of advocacy.
They were all instructed to make Crown Court bail applications and I was there to assist them. The passion, care and thought they put into their applications was inspiring and many of them, especially the winner, were of a standard any solicitor advocate or barrister would be proud of.
I look forward to seeing every one of them as solicitors, barristers, QCs and leaders of the legal profession. Who knows, maybe one day one of them might be a president of the Law Society. One thing is sure – they all richly deserve to achieve their dreams.
26 July 2011 – United front
There is a bewildering array of clubs, societies and special interest groups representing diversity within the legal profession.
Within the bosom of the Law Society there are currently recognised groups such as The Association of Women Lawyers, the Sole Practitioners Group and Junior Lawyers Division to name but a few.
My background is the Black Asian Minority Ethnic constituency which I currently serve as a member of the Law Society council. I am the immediate past chair of the Society of Asian lawyers which vies for attention with other ethnic groupings such as the Black Solicitors Network, British Nigerian Legal Forum and Society of Black Lawyers.
Some add religion to diversity such as the Association of Muslim Lawyers and others, such as the Association of Asian Women Lawyers, add gender. All differentiate themselves and hold functions geared towards the interests of their specific members. However, what has struck me over the last six years is just how much all these groups have in common and how powerful they are when they work together.
In 2008 I was a part of the working party group behind Lord Herman Ouseley’s report on why it seemed that the Solicitors Regulations Authority seemed to disproportionally target BAME-owned firms. This involved the participation of most of the groups listed above.
The report concluded that although the Solicitors Regulation Authority was not institutionally racist it had to reform so that it was not to be perceived as being institutionally racist. Lord Ouseley made recommendations regarding how this might be best achieved. The same groups now take part in the External Implementation Group (EIG) which monitors to what extent and how Lord Ouseley's recommendations are being implemented. In fact the SRA frequently use the EIG to discuss many other issues regarding diversity.
I was also a member of the BAME forum which the Law Society first ran in 2007 and which last met in 2010. At quarterly meetings all of the groups I have mentioned would sit around a table at Chancery Lane and discuss common issues, interests and concerns. This allowed them to speak with a joint voice, to punch collectively above their own individual weight and to point out to the Law Society issues which were important to the members of their organisations. The forum also helped the Law Society to formulate its policy regarding these issues and assisted BAME council members in representing the views of their constituents.
The Law Society and the Solicitors Regulation Authority regularly consulted the forum on issues such as the Qualified Lawyers Transfer Test, professional indemnity insurance, the future of the assigned risks pool, the cost of practising certificates and the question of judicial appointments.
On more than one occasion a tape recorder would be brought to these meetings to record the views of the groups first hand. The tape would be transcribed by the Law Society and would be used to draft a full response by the BAME forum to a number of consultation papers.
Over the summer of 2010 bi-weekly meetings of the forum were held with the Law Society chief executive to monitor the experiences of BAME solicitors in renewing their professional indemnity insurance.
The way in which the society interacts with BAME groups is currently subject to review and a new Minority Lawyers division is to be introduced in the new year.
I hope that the society realises what a valuable resource it had in the BAME forum and that it or a credible successor will see the light of day in the near future. All the groups appreciate that such a dialogue between them needs to continue and that their collective voice needs to be heard. If that dialogue takes place in Chancery Lane then it will enhance the ability of the Law Society to represent a significant minority of its members which must be in the interests of everyone.
28 June 2011- Once more unto the breach
Bigger is not better, writes Sundeep Bhatia in his open letter to the legal aid bosses
We are described as black Asian minority ethnic lawyers. Many of us have set up small new firms to avoid the glass ceiling phenomenon. We are twice as likely to be sole practitioners as our non-BAME counterparts and we are far more likely to practise within firms of five partners or less.
The firms we run are successful and have so far weathered the storms of all the reforms and regulatory obstacles that you have thrown at us over the last decade or more. They are not charity cases. They do not require special treatment. All we ask for is a level playing field. Yet for the last six years you have done your best to put us out of business.
Your whole strategy is dependent on driving small firms from the market because of some misguided idea, on your part, that bigger is better and more efficient.
I know better. A few years ago I saw the accounts of a major criminal legal aid firm.
The amount of debt in its annual accounts made my eyes water. That was certainly a firm that required austerity measures to decrease its spending deficit!
In 2005 you wanted to push through price competitive tendering but stepped back when you saw the opposition of BAME firms, the communities they serve and the groups that they represent.
In 2006 Lord Carter made similar proposals. He was concerned by the effect that his planned reforms would have on diversity within the profession. I discussed the matter with him over tea in the House of Lords and I debated against him, on the issue, at the Law Society.
You backed away from the worst of Lord Carter’s reforms because BAME groups such as the Society of Asian Lawyers and the Black Solicitors Network had the strength of character to stand up and oppose your reforms in the courts with Law Society backing. We may not have been totally successful in the courtroom but we won a moral victory which caused you to retreat and rethink.
Last year the profession as a whole defeated your attempts to introduce price competitive tendering on a region-by-region basis. Those reforms would have decimated small law firms within the Avon Somerset area.
The government has just published its planned cuts, which will destroy family legal aid and which are likely to drive a number of small legal aid practices out of the market. As BAME firms are more likely to be small, this will affect diversity within the profession.
I received a telephone call today from the owner of such a small legal aid BAME firm, specialising in family law. She asked how she could go about selling her practice. I am sure she is one of many who will do the same or indeed collapse their practices, give them away or wind them up.
To add insult to injury, in May you attended secretive meetings in Sheffield and London with firms with a £2m+ turnover. Those meetings were not open and transparent, which was contrary to your duty as a public body. The menu for those meetings makes for disturbing reading and once again price competitive tendering is on the agenda. There are rumours that you discussed what might happen as a result of the rejection of Kenneth Clarke’s sentencing reduction plans and how further cuts to legal aid might be achieved.
The implication behind the meetings are that you are secretly favouring firms with a £2m+ turnover at the expense of smaller firms which are more likely to be BAME owned.
We must now, once again, do everything we can to stop you from driving small BAME-owned firms from the market to the detriment of the legal profession and society at large. We have morality on our side and a duty to the communities that our firms serve. We have access to justice on our side since we offer linguistic and cultural services other firms cannot hope to emulate.
It is right that the legal system should reflect the society that it serves and that there should be solicitors at senior levels who are eligible for judiciary and high office. Your ideas will ensure that that will not happen.
You will, of course, hide behind the need to reduce the national deficit. However, the Law Society came up with a set of proposals that would have saved an equivalent amount while causing a lot less collateral damage. Perhaps you should discuss matters further with your political paymasters.
Property lawyers may have little option but to join the Conveyancing Quality Scheme, but the real challenge is to offer a truly professional service not only to clients but also to their counterpart in a transaction, says John Outram