Founded by George Bisnought in 2009, Excello Law is an innovative, new-model commercial law firm which has pioneered a step-change in the delivery of legal services, providing a more dynamic and independent environment in which to practise for senior lawyers, and meeting client demands for greater quality and value.
Ask someone to list innovative companies which have become notable disruptors in their market and they invariably respond with two names – Uber and Airbnb. That is because both brands are positioned squarely and successfully at the retail consumer: for people who use a taxi or take an occasional short break in a foreign city, they have become the automatic default options. But there is another equally successful business targeting the corporate space, aimed particularly at small businesses and millennial tech start-ups: WeWork. Just like Uber and Airbnb, it is less than a decade old. In that time, WeWork’s ambition of being the world’s leading coworking company has been realised. Championing itself as a disruption revolutionary, it has succeeded more prosaically by ‘creating environments that increase productivity, innovation, and collaboration,’ according to its website. WeWork’s model involves renting office space cheaply via long-term lease contracts. Small units are then re-rented at higher rates to start up companies which are happy to pay a premium because they need very little space.
Co-founded in 2010 by Miguel McKelvey and Adam Neumann with only $300,000 between them, WeWork is headquartered in New York. Eight years on, it now provides shared workspaces, technology startup subculture communities, and services for entrepreneurs, freelancers, startups, small businesses as well as large enterprises in dozens of cities. Still privately owned, should it eventually seek a NYSE listing the business is valued at around $21bn according to PitchBook – a staggering sum for a company renting out short-term office space.
WeWork epitomes the new unicorns (start up companies valued at over $1bn). Having raised private capital to generate a hefty valuation, to date, it has received over $8bn in funding – more than half of it since last July. In the US, this makes it the third most valuable start up after Uber and Airbnb, and the largest in New York. Globally, it is the sixth-most-valuable, according to VentureSource, managing more than 10m sq ft of office space. London has become its key global hub: WeWork is now the largest non-renter of office space in the capital covering 2.6m sq ft.
The promise made by WeWork – to “humanise” work, making the office a more creative place, with the right lighting, the right snacks, and, crucially, the right people – seems set to flourish. Its biggest growth markets in 2018 will be in Hong King and China: by the end of the year, WeWork will be developing in several new locations in Hong Kong and expanding its existing presence in China to eight more cities: Shenzhen, Suzhou, Hangzhou, Xia Men, Cheng Du, Nan Jing, Xi’An and Wuhan. It will also accelerate its expansion into areas outside the office market, with support from some of the world’s biggest tech investors.
The WeWork phenomenon underscores the demand for agile working models, giving start up businesses exactly what they want as the trend become absorbed into mainstream corporate culture. Rapid success of the agile working model is rooted in a variety of inherent benefits.
Hot-desking involves an employee having no set workspace – instead they work at the nearest available empty desk – part of what WeWork offers. For established employers wondering if it will work for them, there are plenty of successful examples. Even at major organisations like the the BBC, around a third of their employees are already hot desking. In addition to better collaboration and greater productivity, it encourages more communication and improves professional relationships.
But the type of agile working encouraged by the WeWork model goes further, allowing people choice in where, when and how they choose to work. This is achieved with maximum flexibility and minimum constraints, allowing workers to optimise their performance. Based on the concept that work is what we do, rather than a place we go, good IT is integral to its success. Here, a critical barrier for employers can be trust. But the evidence from those who have already integrated agile working into their organisation is that it improves productivity and increases staff loyalty rather than diminishes it.
The third element of modern practice encouraged by the WeWork model is flexible working. Increasingly commonplace in companies of all sizes, the benefits of flexible working for employees are self-evident. But what about employers? Well, they experience benefits too, not least increased morale, engagement, and commitment from employees, as well as higher rates of retention. Surveys show that it also reduces absenteeism and lateness. Perhaps most significantly, it increases the ability to recruit outstanding employees by projecting an image of an employer with family-friendly flexible work schedules.
Overall, the flexible and agile office models developed by WeWork fit perfectly with the new patterns of work. Post Brexit, this will continue to have an overwhelmingly positive impact both on the British economy and the well-being of Britain’s workers.
Women in law firms will not achieve parity with men at a senior partnership level until 2037, even though most entrants to the legal profession have been female for more than 20 years. Based on current trends, that is the conclusion of a recent report into the future of legal practice published by BPP University Law School.
There are plenty of women lawyers, but they are not reaching the top
Although over half of newly qualified lawyers have been female every year as far back as 1993, a generation later, the latest annual report from the Law Society shows that women currently comprise 57% of trainee solicitors and associates.
In 2015-16, 62% of Law Society admissions were female, but they still only make up 24% of law firm partners, which falls to 19% among the five magic circle firms.
The gender gap at more senior levels continues a long-term trend: more than 40% of male solicitors become partners, compared with less than 20% of women.
And it’s not just an issue for lawyers…
Of course, the current gender parity problem extends well beyond law firms: it is even more acute in other parts of the legal profession.
The Bar Standards Board (BSB) predicted that it will take until 2067 before half of all Queen’s Counsel positions are granted to women – only 13% of today’s practising QCs are female.
Similar problems apply in the judiciary. In 2015, Jonathan Sumption, a prominent Supreme Court judge, argued that it could take 50 years for gender equality to be achieved within the senior judiciary. In historical terms, he added, this was “a very short time”, cautioning against any rush to put women in senior judicial positions prematurely because it could deter talented male candidates.
Among the most prominent London-based law firms, there has never been a senior or managing partner at one of the magic circle.
Appointed as the first female president of the Supreme Court in 2017, Baroness Hale has consistently identified the need for greater diversity in the highest ranks of the judiciary.
Following her appointment, Lady Hale said she hoped that it would “set a good example to those wonderful able young women who want to aspire to the top” before concluding “there is a special place in hell for first women who pull up the drawbridge after them.”
A failure to meet targets
Although the position among City law firms is distinctly better than for senior barristers or judges, further progress is similarly long overdue, particularly since only a few can claim to have female partnership representation above 25%.
Fewer still surpass the 30% threshold, including not one of the thirteen City law firms which joined The 30% Club five years ago with the specific objective of reaching that target.
At some firms, these figures have notably plateaued, and despite much publicised efforts to improve the position through mentoring and various comparable initiatives, many others have failed to meet their self-imposed diversity targets.
Agile and flexible working have to become more widely accepted as a working pattern that is equally productive when compared with traditional structures – without creating negative fears among those who choose to take advantage of them.
Among the most prominent London-based law firms, there has never been a senior or managing partner at one of the magic circle, for example.
Commenting on the issue, the legal journalist Dominic Carman wrote: “For the magic circle firm that eventually does have a woman, or even women, on their managing partner shortlist, it will be a bold step. And for the first of their number that actually appoints a woman as managing partner, it will potentially make the biggest contribution to gender diversity among City law firms so far this century.”
Cultural change is crucial
For law firms more generally, the problem is self-perpetuating. As a direct consequence of fewer women working at the most senior levels because of inadequate flexibility, they continue to maintain a smaller talent pool from which to promote.
The reality is that many of the current flexible initiatives often prove to be little more than window-dressing in practice: an assortment of initiatives which have been set up, either by law firms or by the current government, to extend flexible working, which have had relatively minimal impact across the legal sector.
So what is the solution? While there is no magic silver bullet and the answer inevitably lies in multiple initiatives, the extension of working schemes that are both practicable and flexible would, without doubt, help to bring forward the date when parity is finally reached.
As a sector, law firms therefore need to increase their existing efforts significantly to create a genuine platform that enables female lawyers to develop their careers at the highest level.
The faster that this cultural shift happens, the sooner that law firms will achieve full gender equality at the top.
A recent report from McKinsey reveals that 59% of female lawyers believe that participating in a flexible work schedule will negatively affect their career, despite the efforts of some firms to promote such schemes.
Therefore, another essential addition to the law firm culture is a much greater genuine commitment to flexibility and agility, both of which are essential in helping to close the gender gap.
For this to happen, a change of mindset is paramount. Agile and flexible working have to become more widely accepted as a working pattern that is equally productive when compared with traditional structures – without creating negative fears among those who choose to take advantage of them.
The faster that this cultural shift happens, the sooner that law firms will achieve full gender equality at the top.
Two parties negotiate and agree the terms of a contract, which they put in writing and sign. Some time later one or other party realises that the contract does not actually expressly include a term which it considers is vital to the contract. Can it then ask the court to imply the relevant term into the contract?
As so often with legal questions, the answer is “Yes, but…..” The courts will, if necessary, imply terms into a contract, but the term to be implied must satisfy one of two tests. The first, formulated as long ago as 1889, is whether the term is necessary “to give business efficacy to the contract”. In other words, must you imply that term for the contract to be commercially or practically coherent?
The second test is known as the “officious bystander test” from the explanation of the logic explained by the original judge in 1939. He suggested that one had to imagine an officious bystander listening to the parties negotiating the contract. In the judge’s words, if the bystander had suggested that the relevant term should be included in the contract, “he would have been testily suppressed with a common ‘oh, of course’.” The test is also often described as meaning that the missing term must “go without saying”.
If one or other of the two tests is satisfied, then courts may be willing to imply terms into a contract, but the courts are traditionally reluctant to alter what the parties have agreed, and there are strict limits to what terms the court will imply. In particular, the courts have always followed the rule that the implied term must be fair and reasonable in the context of the contract as a whole. In the last two years, the Supreme Court has added to this that, while the term must be fair and reasonable, but it does not follow that it should be implied just because it is fair and reasonable. People and companies make bad bargains: they agree to contractual terms which are unfair or unreasonable. It is not the court’s role to relieve them of their mistake and the court will not imply a term simply because it would make for a better deal for one of the parties.
Late in 2017, the Court of Appeal looked at a similar issue. In breach of a confidentiality provision in an intellectual property licence, one party disclosed the terms of the licence to a would-be buyer of its business (who also happened to be a competitor of the company which granted the licence.) When challenged, they argued that it “went without saying” that they would need to disclose the licence arrangement to a buyer and that the term ought therefore to be implied to give business efficacy to the licence agreement. The Court of Appeal disagreed. The defendant had agreed to strict and binding confidentiality obligations. If those strict rules were what the other party sought, it did not “go without saying” that it would be prepared to waive them and the “business efficacy” test required the term to be necessary to give business efficacy to the contract itself, not to some wider commercial purpose of one of the parties.
It goes without saying(!) that the lesson is not to “testily suppress” the officious bystander, but to make sure that all of your key commercial requirements are reflected in the express wording of the contract, even if that means spelling out something you think is blatantly obvious anyway.
Following Carrie Gracie’s resignation as BBC China editor, when she accused her employer of paying women less than men for equal work, the conversation has moved on from gender pay disparity at the corporation to what legal remedies are available for those who have suffered pay discrimination at the hands of their employers.
A disparity exists between the amount of potential award and the nature of the wrong suffered. If Gracie were classed as an employee, she would rely on section 66 of the Equality Act 2010 (the sex equality clause) and the lack of equality in her pay. However, relying on this means that she would be unable to claim any injury to her feelings, thereby limiting the potential award to a maximum six-year entitlement for back-pay.
There is a notable demarcation between gender and other protected characteristics. If Gracie had resigned on the basis of the BBC’s failure to pay her the same as a comparator of a different race, for example, she could not bring a section 66 claim but would be able to bring a claim under section 39(2) of the Equality Act for a discriminatory dismissal. Accordingly, her compensation could then include both arrears of pay as well as compensation for injury to feelings, which could potentially run into many thousands since liability is theoretically uncapped.
As a public service institution, the principle of equal pay for equal work is increasingly acute for the BBC as it continues to be drawn into high-profile employment law issues. Although rival broadcasters avoid the same scrutiny, perhaps because they are not funded by the licence fee, the law applies equally to every employer.
Women will not achieve parity with men at a senior partnership level in law firms until 2037, at least according to BPP University Law School’s recent report on the UK’s legal industry, Law firm of the future.
This critique extends beyond law firms. Baroness Hale, the first female president of the Supreme Court, has consistently identified the need for greater diversity in the top ranks of the judiciary.
Among city law firms further progress is long overdue, particularly since only a few can boast female partnership figures above 25%, with less than five of them above 30%, according to Chambers Student’s Law firm diversity 2016 report, published in December 2016. At some firms, these figures have plateaued over the last five years, and despite much publicised efforts to improve the position through mentoring, many others have failed to meet their self-imposed diversity targets.
When fewer women work at more senior levels because of inadequate flexibility, law firms perpetuate a smaller talent pool from which to promote. Current flexible initiatives are often little more than window-dressing; law firm and government initiatives to extend flexible working have had relatively minimal impact across the legal sector.
The extension of practicable flexible working schemes would undoubtedly help bring forward the date at which parity is reached. Collectively, law firms therefore need to redouble their efforts in delivering a platform for female lawyers to develop their careers. A culture that fully embraces flexibility and agility is essential to close the gender gap.
For this to happen, changing mindsets are paramount. Agile and flexible working have to become more widely accepted as a working pattern that is equally productive when compared to traditional structures. The faster that this cultural shift happens, the sooner that law firms will achieve full gender equality at the top.
The issue of single parent families has attracted the attention of headline writers for more than a generation. But in the reporting of data relating to them, much of it centres on the two million single parents who comprise a quarter of all UK families with dependent children. Notably, rather less coverage is given to the 3.2m children who live with a single parent, most of whom come from a divorced family. Far less likely to make headlines is that many of these children are adversely affected by parental conflict.
It is perhaps unsurprising to learn that children who grow up in a family where their parents’ relationship is acrimonious are frequently susceptible to significant mental and emotional harm. And it should come as no surprise either that 32% of children whose parents are divorced exhibit a high level of mental health problems of some kind, according to the Millennium Cohort Study (MCS), which tracks the progress of 18,800 children born in the UK in 2000–01.
The Royal College of Psychiatrists (RCP) states that in this situation, a child may feel: a sense of loss –separation from a parent can mean they lose not only their home, but their whole way of life; different, with an unfamiliar family; fearful about being left alone – if one parent can go, perhaps the other will do the same; angry at one or both parents for the relationship breakdown; worried about having caused the parental separation: guilty; rejected and insecure; and torn between both parents.
The RCP concludes:
‘Even if the parental relationship had been very tense or violent, children may still have mixed feelings about the separation. Many children hold onto a wish that their parents may get back together. Whatever has gone wrong in the relationship, both parents still have a very important part to play in their child’s life.’
The scale of the national problem is illustrated by figures published by the Office for National Statistics. In nearly half of all marriage break-ups, there is at least one child in the relationship with 230,000 people in the UK divorcing every year. These numbers have remained stubbornly high for well over a decade. And almost as many children endure parental separation each year who are not included in these figures because their parents had never married.
The overall impact therefore affects hundreds of thousands of British families at any one time with an estimated 240,000 children in the UK experiencing the separation of their parents annually while more than one in three children will see their parents split up before they reach their 16th birthday.
So where does the law stand in dealing with the fallout from such a devastating level of divorce and separation? The general principle underpinning the operation of judges in the Family Courts is that they must always put the welfare of the child first. This is reinforced by legislation. Whenever a judge makes an order under the Children Act 1989, they must make a decision which they believe is in the child’s best interest in terms of their welfare. But there is also an overriding presumption, backed up by evidence, that children do best if they can maintain a good relationship with both their parents.
Although the development of legislation has undoubtedly been well intentioned with regard to children, the law can do very little in practice to change the inherent shortcomings of human nature. Responsibility for trying to make children happy falls upon their parents. And what so often makes the difference is how they manage the breakdown of their relationship in order to minimise adverse consequences for their children.
Experts in the field put in enormous effort to try and help these parents to understand how to talk to their children, to support their feelings, to minimise conflict within or between households, and to develop effective and mutually agreed parenting arrangements.
But this is not always what happens in reality. Far too often, one parent persistently undermines contact arrangements with the other and sometimes a child can effectively be ‘brainwashed’ or alienated against the ‘absent parent’. When this situation arises, it is very difficult in practical terms to force a child to see the absent parent against their wishes.
According to the RCP, separating parents should protect their children from adult worries and responsibilities and make it clear that the responsibility for what is happening is the parents’ – and not the children’s. The RCP advises, ‘It is important not to pull your child into the conflict’ – and publishes a list of Don’ts for parents including: don’t ask your child to take sides; don’t ask your child what the other parent is doing; don’t use your child ‘as a weapon’ to get back at your ex-partner; don’t criticise your ex-partner; and don’t expect your child to take on the role of your ex-partner.
Parents going through an acrimonious divorce may find it difficult to help their child cope, and understandably may want to seek outside help. But where their own behaviour is unacceptable, they should be positively urged to attend courses in order to challenge it, and provide themselves with greater insight into how adult conflict adversely impacts upon their children. If managed sensitively, most children can eventually adapt well to their new circumstances in the long term. But only if both parents fully recognise their responsibility in making that happen.
The gig economy and workers’ rights are among the most prominent themes of our age. In the future of employment – in particular, what it means to be employed or self-employed – they are critical. Catapulted to the heart of this debate is Uber, which has deployed its ride-hailing platform app in nearly 500 cities around the world since its San Francisco launch seven years ago. But in the UK and elsewhere, it has run into myriad legal problems. Most recent among them, Uber lost a hearing at an Employment Appeals Tribunal (EAT) in London in a case brought by co-claimants, James Farrar and Yaseen Aslam. The verdict in favour of the two Uber drivers poses a threat to the fundamental premise that has fuelled the meteoric rise of the gig economy: that workers work for themselves and not for the apps which rely on them.
In the appeal hearing, Dinah Rose QC for Uber argued that it is not part of the gig economy, and operates a similar business model to local taxi firms. She said the Uber booking app acted merely as an agent and was a “very powerful piece of technology” which gives drivers access to passengers in return for part of the fare. “Potential drivers or users are under no obligation at all to use it and if they don’t use it they don’t have to pay Uber anything at all,” she added.
But the EAT judge disagreed, concluding that Uber drivers were not independent contractors who were making use of an app. Instead, he supported the decision reached by the original tribunal last year, namely that they were “workers” because Uber controlled much of their work, such as allocating customers and dictating the prices charged for each fare. Uber has decided to appeal by taking its case to the Supreme Court, ‘leapfrogging’ the Court of Appeal.
This may ultimately answer the question at the heart of the gig economy business model: is Uber a matchmaker, or is it providing a service? Judges in different jurisdictions have decided that the Uber app service goes further than just intermediation.
Many companies operating in the gig economy could be affected by any decision: if they are required to assume the full range of responsibilities as employers, that will mean covering holidays and absorbing labour costs, as well as potentially higher taxes. The net affect may be increased costs passed on to consumers. Gig economy companies like Uber also argue that drivers prefer flexible working rather than restrictions that come with minimum hourly wages and holiday pay.
Inevitably, the EAT decision has provoked much comment in the UK, particularly given Uber’s additional problems over its future licence to operate in London: Uber faces the prospect of losing that licence following a refusal by the city’s transport authority to renew it.
Chief among the critics of the EATdecision is Matthew Taylor, chief executive of the Royal Society of Arts and author of Good Work: The Taylor Review of Modern Working Practices, which was published in July and submitted to the government. The Review concerned employee and workers’ rights in English employment law.
Taylor recently criticised the Uber drivers for demanding improved workers’ rights while at the same time maintaining their self-employed status for tax purposes. He called it trying to have the “best of both worlds”. But this criticism is flawed. Central to the case decided by the EAT is Uber and other comparable businesses operating within the gig economy. They want access to a large, flexible workforce without having to meet the obligations that go with it, namely workers’ rights. That is, indeed, having the best of both worlds.
Traditionally, there are three principal categories of worker in the UK: self-employed or independent contractors; agency workers or temps; and employees. Each category enjoyed different employment protection rights. More recently, a fourth category of ‘worker’ has developed chiefly from EU law developments. In some respects, the ‘worker’ category overlaps with the others.
The chief reason for a new category being introduced was to prevent unscrupulous employers exploiting cheap labour. The EAT decision in the Uber case is a direct result of decisions by previous governments to extend certain rights, including those in relation to discrimination, working time and holidays. The European Court of Justice will soon decide whether Uber should be classified as a tech company or a transport company – if it decides the latter, this will significantly impact all areas of its business across the EU.
For the current UK government, the main driving force appears to be more pragmatic: lost potential tax revenue rather than workers’ rights. To remedy this, a programme, similar to the Construction Industry Scheme, could be introduced for those individuals working within the gig economy. This would deduct a certain amount of tax at source as advance payments towards the workers’ tax and National Insurance contributions.
For now, the saga isn’t over. Although their application, on appeal, to ‘leapfrog’ the Court of Appeal and go directly to the Supreme Court was denied, it has been confirmed that Uber’s case will be heard by the Court of Appeal next year.
Once people have agreed the essential terms of a contract, the one remaining issue for it to be legally binding and enforceable is whether or not the parties intended it to be legally binding. If they both sign a formal legal document, then the answer is obvious. If they exchange letters or emails agreeing the relevant terms and don’t expressly say that the correspondence is “subject to contract”, the courts will assume they did mean the terms to be legally binding. But what about just talking about a possible deal in semi social surroundings – over a working lunch or in the pub? Could what was discussed and “agreed” then become legally binding?
Twice in the last year, the High Court has been asked to decide exactly that. In both cases, the court concluded, on the basis of the specific facts, that at least one of the parties had not meant the discussions to be binding, but the fact that it took several days of High Court time to come to that conclusion shows the risk of careless informal discussions.
In Blue v Ashley, Mike Ashley (the owner of Newcastle Utd and a director of Sports Direct) told his associate, Mr Blue, he would give him £15m if he got Sports Direct’s share price up to £8 per share. The promise was made in a pub over [several] beers in the presence of 5 witnesses. They all agreed the comment had been made, but also agreed with Mr Ashley that they had not taken it seriously and did not think it was meant to be a binding contract. There had been no follow-up correspondence about the conversation. The court thought the terms of the promise were too vague (e.g. no mention of timescales) and also that it was unlikely that Mr Ashley intended to conclude such a valuable contract in the pub without any formal documentation. The judge decided there had been no intention to create legal relations.
In MacInnes v Gross, Mr MacInnes, an experienced banker, claimed €13.5m commission for assisting with the sale of one of Mr Gross’s companies. The deal had been reached, he claimed, over dinner in London, and the terms were reflected in an email he sent Mr Gross the following day. The court decided that the wording of the emails supported Mr Gross’s argument that no final agreement had been reached, particularly as to exactly how Mr MacInnes’s compensation was to be worked out. The email used phrases like “headline terms” and said “Next time we see each other, let’s make a proper contract” which indicated that the discussions were not to be seen as final and binding.
The judge, Coulson J, however, noted that “a contract could be made anywhere, in any circumstances” – a clear warning that even apparently casual arrangements made in a social setting could result in the parties being bound by legal contracts. The more informal the setting, the more the court would want very clear evidence that the parties did in fact intend to create legal relations, but it would depend on all the circumstances. Following up, for example, by email setting out the terms and saying they have been agreed would often strongly support the claim that the arrangements were binding, particularly if the other party did not contradict them, but as MacInnes v Gross illustrates, the wording of the email may also be critical evidence of the parties’ true intentions.
The case of Jarndyce and Jarndyce, as Charles Dickens called it, is well-known to every student of Law, and of English Literature, as an epic legal battle. An entirely imaginary dispute derived from his fertile imagination, it forms the centrepiece of Bleak House epitomising the very slow movement of the law that was a very real problem in mid-Victorian England.
The disputed money at issue between the parties, a large inheritance, becomes slowly but surely eroded over many years of litigation in the Court of Chancery – until there is nothing left in the estate because all the money has been entirely consumed in lawyers’ fees.
More than a century and a half later, the legal world has moved on considerably. But the contemporary case of Carole Hayes and Timothy Hayes (Hayes v Hayes) has definite echoes of its fictitious predecessor. Mr & Mrs Hayes were granted a divorce which became absolute in 1991 – 26 years ago. Yet more than a generation later, the two parties are still battling it out in court over alleged undisclosed assets.
Despite the fact that Mr Hayes has remarried and Mrs Hayes has a new partner, it has consumed their lives. As Mr Justice Nugee put it in a 2014 judgment ‘Unfortunately, they have been embroiled in numerous disputes.’ He went on to say: ‘The common theme throughout has been the defendant’s repeated allegations that the claimant has hidden monies in the order of £750,000 to £1 million abroad, a “pot of gold.”
Among several different actions launched over the years, Mrs Hayes issued a bankruptcy petition against Mr Hayes, while Mr Hayes has litigated against Mrs Hayes and her new partner, claiming damages for harassment, that they had maintained “an unrelenting campaign” against him and his current wife.
For a divorce case, or indeed any case, to be so protracted is highly unusual. However acrimonious the dispute, most people would definitely want to end such tortuous litigation and simply get on with their lives. Of course, every case is different. And divorce is distinctly personal. We must therefore look at the bigger picture for this case and other family cases in order to understand fully the particular nuances and unique details.
In some cases, and in particular the Hayes’ divorce, litigants have to draw a line and say enough is enough. While the motive for continuing the case is unclear in the context of the Hayes matter, the costs of litigation, which span many years, must already have, or at some point certainly will, become disproportionate to the potential ‘rewards’, or money to be uncovered.
The court procedure in Financial Remedy applications means that approximately 90% of all cases settle at the Financial Dispute Resolution hearing, which is akin to in-court mediation, rather than go to a final hearing when a judge determines the outcome.
The continued dispute in Hayes v Hayes has already, and will probably continue to prevent both parties from moving on. The same seems to apply to some members of their wider family. If litigation is stressful at the best of times, then wilful engagement in protracted proceedings that seem to have no end will bring an emotional toll to all those involved that is immeasurable.
Whereas the Jarndyce case was the fault of the lawyers and the prevailing legal system, this is a case where it could be said the divorced couple appear to remain obsessed to the point of absurdity – a case of ‘litigation overload.’” Dickens wrote that ‘Jarndyce and Jarndyce drones on’ – so does Hayes v Hayes, making for a very bleak house on both sides.
In the latest legal battle over workers’ rights and the gig economy, Deliveroo has emerged victorious. As one of the UK’s biggest gig economy companies, the food delivery app defeated a demand by north London couriers for union recognition, and by extension, workers’ rights. The ruling by the Central Arbitration Committee (CAC), the tribunal that oversees collective bargaining law, was a triumph for Deliveroo and a knock back for the Independent Workers Union of Great Britain (IWGB), which had backed the case.
The Deliveroo decision comes hard on the heels of the latest decision against Uber which lost its appeal against an Employment Appeal Tribunal (EAT) ruling: that its drivers should be classified as workers with rights, such as holiday pay and a minimum wage, rather than being self-employed. That case, brought by two drivers, was also supported by the IWGB.
So what makes Deliveroo different from Uber? The EAT decision in the Uber case was reached because the drivers were deemed to be workers for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1999 and the National Minimum Wage Act 1998. Whereas the Deliveroo case did not involve an Employment Tribunal. Instead, the couriers asked that their union be recognised for the purposes of collective bargaining: the CAC had to consider the IWGB’s application for recognition for that purpose.
The worker issue was fundamental to the question of the right to recognition as collective bargaining rights only apply to workers. Critically, the CAC agreed with Deliveroo’s claim that its couriers are self-employed and backed the argument that their riders are able to accept or decline jobs, and most importantly they have the right to substitution – the ability to ask someone else to deliver food on their behalf.
In its decision, the CAC said: “The central and insuperable difficulty for the union is that we find the substitution right to be genuine, in the sense that Deliveroo have decided in the new contract that riders have a right to substitute themselves both before and after they have accepted a particular job.” It continued “In light of our central finding on substitution, it cannot be said that the riders undertake to do personally any work or services for another party.”
The net result is that the CAC confirmed that Deliveroo couriers are self-employed contractors since they have the right to allocate a substitute to do the work for them. The key difference from the Uber decision is that the Deliveroo couriers more closely match the definition of self-employment status because they have the right to decide when they log on to the App: they can choose to decline jobs they do not want and substitute with others for any particular job.
Uber will take comfort from the CAC decision in its continued legal challenge. We can therefore look forward to more battles ahead in this intriguing and important struggle to define the status of an ever-increasing number of people who choose to work in the gig economy.