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.
When employers are faced with potential claims from their employees it is quite common for them to enter into settlement agreements to resolve the dispute. However, not every claim can be resolved in this way. Some can only be settled through The Advisory, Conciliation and Arbitration Service (Acas), by using conciliation, which avoids the need for an Employment Tribunal. There is also quite a sizeable category of other claims which cannot be dealt with by either method: those where no compromise is possible.
In a number of these circumstances, the law is silent and legislation notably absent. As a result, there are different assorted claims that do not have any statutory mechanism for settlement. These include the right to statutory maternity or paternity pay, statutory adoption pay and statutory shared parental pay. Instead, there is an absolute restriction on contracting out of these payments. Other categories include claims for failure to notify the right to request working beyond retirement, and breach of the right to be accompanied at a meeting to discuss retirement.
Current legal opinion is that rights under the Data Protection Act 1998 (DPA) cannot be compromised. However, it may be possible to waive any civil claim for damages in respect of a breach of the DPA that occurred prior to the settlement agreement.
When it comes to personal injury claims, it is possible to reach a compromise. Nevertheless, employees’ professional advisers will often insist during any negotiations that latent personal injury claims, which the employee is not currently aware of, should not be compromised. It is, therefore, standard practice for such claims to be excluded from the list of claims waived.
Pensions are generally very well protected by the Pensions Act 1995 and other legislation. It is not, therefore, possible to waive any accrued pension rights, except in certain limited circumstances.
The conclusion: if in doubt, seek professional advice.
Everyone has felt the effects of a long cold winter. But this year, it was particularly bitter for some of Britain’s best-known retailers. Toys ‘R’ Us will soon be no more with the loss of 3,000 jobs in the UK alone. The administrators are also in action at Maplin, where closing down sales are already underway. Carpetright is in the process of closing stores and raising emergency finance. Meanwhile, Mothercare is in talks with its bankers over a planned restructuring, Next has announced its toughest trading period for 25 years, and Moss Bros and B&Q are the latest companies to issue sharp profits warnings, joining John Lewis where profits fell by 77% last year.
So why is this happening to so many household names when the British economy is not in recession, or indeed set on a downward economic path? It might be tempting to give a one-word answer: Amazon. The exemplar of online retail success, Amazon has gone from being a start up business only a generation ago to becoming the second most valuable company in the world this year with a market cap of $750bn.
Changing consumer market
However, to claim that Amazon is the main cause of retailers’ problems is both simplistic and flawed. The picture is much more complex. The failures of Maplin and Toys ‘R’ Us are a direct consequence of a changing consumer market: the online threat facing bricks and mortar retail stores in the UK is considerable with total sales down by 2.5% last year, continuing a pattern of decline established over nearly a decade. Year on year, in-store sales of non-food items fell by 4.4% in December – the worst Christmas performance for five years.
As a result, insolvency practitioners have been busy. Another prominent casualty this winter was Carillion, Britain’s second largest construction company and a diversified international business with multiple outsourcing and public service projects on its books. Quite different from the problems facing those in charge of high street retailers, it went into liquidation in January, putting nearly 20,000 UK jobs at risk, as a consequence of systematic management failure. In what happened during the months leading up to its collapse and in subsequent events during the insolvency process, there are echoes of the April 2016 demise of BHS.
In both cases, the directors and former directors of Carillion and BHS have been subject to much scrutiny. No-one can forget Sir Philip Green’s memorable TV performance when he was questioned by a parliamentary committee, broadcast live on the BBC, while the Financial Reporting Council recently announced that two former Carillion directors are set to face an investigation into their conduct over the company’s activities.
Overhaul of insolvency framework
Responding to what it calls “recent corporate governance failures”, the government has also announced an overhaul of Britain’s insolvency framework with plans designed to prevent any repeat of failures such as BHS and Carillion. This will involve new legislation that makes it easier to bring criminal proceedings against the most “reckless” employers and directors of businesses which are either already in, or approaching insolvency. Given what happened at BHS and what is reported to have happened at Carillion, this initiative is very welcome.
On the face of it, the administrations of Toys ‘R’ Us and Maplin are quite different from these problems, but there may in fact be a common link: the conduct of auditors. According to the International Forum of Independent Audit Regulators, lapses in accounting were identified at an astonishing 40% of the 918 audits of listed public interest entities which they inspected last year.
This raises inevitable questions about the quality of work that is being carried out by some of the world’s largest accounting firms. However impressive they may be in the scope and scale of their operation, there may be a lack of transparency between businesses and their auditors which has resulted in very large companies falling into administration.
A difficult winter for Britain’s consumer economy has passed. According to the Office for National Statistics (ONS), although trade fell at non-food stores, the latest retail data showed a rise in sales at supermarkets in February as overall retail sales volumes picked up by 0.8% compared with January.
We can hopefully look forward to further improvements in the spring. Likewise, it is to be hoped that in addition to the outcome of the government’s plans to overhaul the insolvency framework, there will also be heightened transparency between businesses and their auditors. This would benefit everyone concerned: employees and consumers, as well as businesses themselves.
Does Britain have a clear 2020 vision? Over halfway through the two-year time limit prescribed by the terms of Article 50, but with no Brexit deal yet in sight, several critical fault lines remain between the government in London and EU leaders in Brussels. Despite endless discussion, debate, and dissection of the myriad issues over the intervening months, there is still uncertainty about the eventual outcome and how matters such as trade will work in practice.
This leaves the shape and structure of a defined model for post-Brexit Britain’s future relationship with the EU unclear even though, at last, it seems that there has recently been some progress that could ultimately result in a trade deal, rather than political brinksmanship between the Government and EU. The question therefore remains as to how the UK might become a more flexible and attractive country for trade and investment than it has already been recognised up to now?
For most businesses, which are far less concerned about the political minutiae and much more anxious about the practical affects, there is hope – at least in the potential for some reduction in bureaucracy and regulation, colloquially known as red tape. To this end, The Red Tape Initiative (RTI), dubbed the “other Brexit department”, was launched in April 2017: a non-partisan project, comprised of a group of senior Remain and Leave-supporting figures from across the three major UK-wide political parties, as well as from non-aligned organisations in business and industry, such as the CBI, the IOD and the British Chambers of Commerce. Founded and chaired by the former Conservative cabinet minister, Sir Oliver Letwin, its principal aim is to create a consensus on the regulatory changes that could benefit businesses and their employees post-Brexit, and on cutting some of the bureaucracy that currently impedes business.
Identifying the early wins
Between them, this cross-party initiative is working to identify changes ‘that could quickly be made in specific areas of EU regulation, with immediate benefits for jobs and businesses in the UK and with no adverse effects on our ecology or our society,’ according to its website. The main objective is to identify ‘early wins’ that could command cross-party support in both Houses of Parliament immediately after Britain leaves the EU. So far, RTI has identified more than 50 rule changes in cutting Brussels-derived red tape that could be implemented as soon as Brexit happens. After a transition period, this is presently scheduled to be at the end of 2020, subject to a deal being agreed this year. Designed to address the most problematic examples, as identified by businesses, UK regulators and trade unions, cutting red tape will include an overhaul of “state aid” rules which prevent the government from offering cheap loans to builders, for example.
In addition to housing, RTI has proposed scrapping restrictions across nine different sectors, including infrastructure, training and apprenticeships, retail, research and technology, health and energy. This reduction in red tape might not turn out to be a bonfire of regulations, but it may well be a step in the right direction for attracting new business.RTI is therefore a positive development, although it remains to be seen how pragmatic and efficient its proposals will be. The first results from its efforts are expected to be published shortly.
Improving UK’s infrastructure
What really matters in RTI’s work is that time is spent efficiently in finding the areas of most concern and doing something practical about them by establishing the right framework for the private sector to step up its efforts to improve the UK’s infrastructure – particularly in sectors such as housing and transport. Despite the obvious attraction to businesses of less red tape, there is a balance to be struck between a beneficial reform of regulations that creates greater freedom for business to operate and keeping enough on the statute book to protect the rights of consumers and preserve the high standards which they can expect. As Sam Woods, deputy governor of the Bank of England, said in February when he warned against a “bonfire of the regulations” after Brexit, while pledging to “maintain standards of resilience in the financial sector at least as high as those we have today”.
Clarity of purpose and robust regulation can protect consumers and business alike by creating a level playing field and helping to encourage investment.For lawyers and other advisers in the professional services industry, clients are invariably interested in whether their business operations will really be as seamless as possible once the UK exits, or whether unforeseen problems may yet emerge.
Encouraging responsible, long-term investment
Above all, international investors look for certainty. In practice, this ideally means preserving a stable regulatory backdrop and creating minimal bureaucracy in a business-friendly environment that encourages responsible, long-term investment in the UK. For our politicians to achieve that utopian balance is no easy task. A perfect 2020 vision will be possible in the years to come with the wisdom of hindsight, but looking forward rright now there is realwork to be done to reassure and attract investors.
Quickly following on from the Harvey Weinstein scandal, the #MeToo hashtag went viral across all forms of social media. After it first appeared on Twitter, the hashtag was used 850,000 times within the first 48 hours.
Since then, #MeToo has been posted on Twitter and elsewhere tens of millions of times, often accompanied by a personal story of sexual harassment or assault. This has helped to demonstrate the common prevalence of both phenomena, particularly in the workplace.
Almost a third of theatre professionals in the UK, for example, have been sexually harassed at work, according to an online survey published by The Stage magazine. Nor is the problem confined exclusively to the entertainment industry. Women in medicine, politics, PR, advertising, insurance, banking and a host of other sectors are all subject to the same type of harassment, according to a raft of similar surveys.
80% of women experiencing sexual harassment at work have not reported it
Research by the TUC has found that over half of female workers have experienced sexual harassment with four out of five women not reporting it to their employers. Of these, 25 per cent had suffered unwanted verbal sexual advances at work while 12 per cent experienced unwanted sexual touching or attempts to kiss them at work.
Following the now infamous Presidents Club Dinner held at the Dorchester Hotel in January, where women working at the event had to sign non-disclosure agreements (NDAs) beforehand, the Unite union found that a remarkable 90% of workers in hospitality have experienced harassment.
Even those who practise law are not immune. Online research done by Legal Week last year found that two thirds of female lawyer respondents had experienced sexual harassment while working in City law firms. Individual lawyers shared their #MeToo stories as part of the report.
A common theme from those who made comment was a reluctance by law firms to respond appropriately. Instead of dealing with the miscreant, the problem was turned on the victim as one respondent explained: ‘Firms where there’ve been big issues just write a cheque and get an NDA signed.’
#MeToo is starting to create dramatic change in the workplace
The #MeToo campaign is the latest online initiative set to impact professional culture for the better. The influence of social media, both in its immediacy and global reach, have been illustrated by the remarkable spread of this global story. From professional networking sites like LinkedIn to social platforms like Twitter, it is already starting to create dramatic change in the workplace.
A raft of companies have pledged to beef up their ‘zero-tolerance policy’ towards sexual harassment by punishing transgressors and, where appropriate, reporting them to the authorities.
Some have already changed their methods of operation. For example, Vogue publisher Conde Nast will no longer use models aged under 18 following a new company code of conduct in the wake of widespread claims of harassment and sexual misconduct in the fashion industry.
Of course, the problem is not exclusively female. A BBC survey in October 2017 revealed that while half of British women have been sexually harassed at work or a place of study, a fifth of men have also suffered the same fate.
Most incidents continue to go unreported in the workplace. Notably, of the women who said they had been harassed, 63% said that they did not report it to anyone, while 79% of the male victims also kept it to themselves.
Following the #MeToo campaign, these numbers are expected to change dramatically: more women and men will be encouraged to report harassment in the future. Why? Because the culture is changing, and fast – both online and offline.
Facebook is a good example. In December 2017, the world’s biggest social media platform with 2bn users decided to make public its internal sexual harassment policy. Facebook hopes that this initiative will help other companies struggling with how to deal with sexual harassment claims.
Sharing best practices can help all businesses improve
“Harassment, discrimination and retaliation in the workplace are unacceptable but have been tolerated for far too long,” Facebook’s COO Sheryl Sandberg and its head of HR, Lori Goler, wrote in a blog post. “These are complicated issues, and while we don’t believe any company’s enforcement or policies are perfect, we think that sharing best practices can help us all improve, especially smaller companies that may not have the resources to develop their own policies.”
The role of social media within the contemporary workplace is important for every company in fighting this battle. Employers therefore need to recognise the importance of having express terms in their contracts of employment to deal with social networking site content.
It is strongly advisable to consider upgrading restrictive covenants. Not dissimilar in effect to the now notorious NDAs, these are clauses in an employment contract that place restrictions on employees during and after termination of their employment.
It is equally important that companies provide clear guidance for their employees regarding the use of social media both in and out of the workplace. Beyond that, every modern employer should embrace and promote the opportunity and capacity of social media campaigns to instigate real world change to professional life everywhere.
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.