employment law

It’s no surprise that Brexit is leaving most employers and employees in a legal limbo. For all that many may be expecting the post-Brexit environment to be weighed towards employees, of the moment uncertainty only depresses worker’s rights and forces them to cling to whatever signs of stability in employment they can find.

Brexit fears have exposed how a record number of UK Employees are drastically underpaid, with almost 440 thousand people paid below minimum wage, and over 6 million people earn below the ‘real living wage’ of £9/hour or £10.55/hour required to keep their heads above water. The report by the Low Pay Commission found that a higher proportion of women were underpaid and the youngest and oldest were the more affected than other age groups.

This is not new, as the annual list of underpaying companies released by the Department for Business, Energy & Industrial Strategy shows. However the fears of a contracting economy presents a hindrance for small business owners to adjust their pay scales. In order to pay everyone, both employers and employees fear that someone needs to be let go.

Coming to Work Sick Just to Keep Present

Among the most desperate of actions by employees in order to appear valuable is to come to work even when unwell. Already over 70% of UK workers choose to still go to work when they feel ill, a study found. This is presenteeism, and coming to work even when ill has several possible reasons behind it. The fear of staying off work for days may be interpreted as lacking commitment is one, similar to company peer pressure and the high demands of a competitive culture workplace. Other reasons cited are a lack of adequate sick pay and experienced financial difficulties that stress employees to show up to work even when feeling ill.

In a time when there is a labor shortage and other employees are working for more hours for less pay, absenteeism is stigmatized. Many employees reported they already work 68 days more per year than they need to, without overtime pay, as they are required by their bosses to sign a waiver in their employment contract.

The risks of presenteeism however, are many. Apart from worsening the employees health, there is also the danger of infecting more people in the workplace and impacting productivity. For non-infectious long-term ailments, it can worsen to the point of a disability.

The greatest irony is that when someone goes to work when mildly under the weather, others also feel pressured to imitate them in order to demonstrate passion and commitment for their jobs. There is also how high workload and job insecurity itself may require time away from work before developing into illness, but workers feel wary about the consequences of staying away from work until they are eventually forced to do so by burnout or stress-related ailments.

The stigma comes from “older generations that never accepted that someone can be truly be working productively at home”, said George Boué, a vice president of Human Resources at Stiles Corporation. There is a deep suspicion that workers cannot keep on task when they are not under the eye.

Jobs that were once formal fulltime work have become uncertain and transitory in a more gig-based economy. Now employees can be temporary, seasonal, part-time, by agency, freelance, platform-based, outsourced, subcontracted, marginal, etc., and both managers and employees seek some form of stability.

Mike Marsen of the health services company Allies for Health + Wellbeing and a member of the Society for Human Resources Management’s HR discipline expertise panel says there are two types of managers. “The first believes that employees are inherently not willing to work and thus need a lot of rules. These managers will be predisposed to think the worst of any employee, especially when illness is brought up as an excuse for being out of the office.

“The other kind of manager will try to set reasonable standards and trust employees to be adults. The onus is on managers themselves to create a culture where employees feel empowered to take time off, he says. The best way is through leading by example.”

The Holiday Campaign, the Four-Day Work Week and Other Experiments

With the predicted labor crunch after Brexit hits, the government is pulling out all stops to present the UK as still an attractive place for skilled and reliable workers.

It is estimated that in the UK, 1.8 million people are not receiving the holiday pay they are entitled to, and so recently the government launched the “It Comes With the Job” advertising campaign to make employees more aware of their rights as part of the 2017 Industrial Strategy.

Another experiment is the Four-Day Work Week, endorsed by many employers and employees. A recent Oxford study suggested that working four days could improve productivity, leading to a healthier workforce, reduction in sickness absences and better work-life balance. However, it has also its criticisms in that reduced work hours negatively impact those who do need those paid hours. In some sense it is necessary to combat work fatigue, as many in the UK find themselves actually working seven days in the week just to keep ends met. Critics of the theory point to France which implemented a 35-hour work week and the reduction to four working days reduced rather than increased overall employment for those affected by the law.

With the TOEIC scandal having deported over 1000 students and locked away in limbo almost 30,000 other student and work visas, the Home Office finds itself under fire for broad brush responses that drive away thousands of skilled workers and students and leaving them no way to appeal and clear their name.

Many Sick Leave and Time Off Protection Laws are Actually Derived from EU Legislation

The Working Time Regulations 1998 and The Working Time (Amendment) Regulations 2007 implement the EC Working Time Directive which guarantee workers the right for fair working conditions as set out in Principle 10 of the EU Pillar of Social Rights and Article 31 of the Charter of Fundamental Rights of the European Union. These laws provide the limit to weekly working hours, a rest break and minimum daily rest period, the mount of paid annual leave, holiday pay, and maternity and parental leave.

International standards also serve other legislations in place to prevent and remedy discrimination and harassment based on many factors, and whistleblower protection, such as the Equality Act 2010. TUPE regulations smooth the transfer of employees between companies. These protections for workers are to universalize the free movement of people, goods, services, and capital between member states.

Other employment law rights, such as the protection from unfair dismissal and the rights when engaging in strikes, derive solely from UK regulations. When the UK finally leaves the EU, certain laws derived from EU regulations might need to be changed.

Theresa May pledged to “embed the strongest possible protections” for worker rights and entitlements in replacement for scrapped EU laws but Labor and unions remain unconvinced. Even if the parliament did pass equivalent laws to EU standards, they would still lose out on key features like rights having primacy over local laws and the effective enforcement of remedies.

Unions and employment solicitors are concerned that after Brexit, workers will lose access to EU courts that have largely proven to give more sympathetic interpretations of the law to their concerns rather than corporate interests. The UK has a record of resistance to the pro-worker legislation developed by the EU. Labor simply does not trust that the PM’s offer even approaches the need to give precarious workers the full protection they used to enjoy under EU employment law.

Both workers and employers need to keep well-informed and motivated to fight for their rights in order to avoid chaos in their workplace as Brexit finally hits. Delays only keep heightening the uncertainty, even if the worst should hit would be relief, as now they have a stability of a sort to finally get around to fixing it.

Family Law Disputes after Brexit

If the UK leaves the EU with no deal this 29th of March 2019, there will have to be some changes to certain family law disputes as some EU family laws will no longer apply. The Ministry of Justice and Foreign & Commonwealth have published guidance to the public about this possible impact, but of course it is still best to refer to your family law solicitors.

Most of these changes will apply to England and Wales, and cross-border disputes with Scotland and Ireland will have to seek advice with family solicitors there.

Impact to Your Pending Legal Disputes:

Divorce

  • If your case is ongoing or made final before 29 March 2019, you will not be affected.
  • But applying after this date, the new rules will apply.

Parental Responsibility

  • If you start a case about arrangements with your children after 29 March, the new rules will apply but the procedures for application will remain the same.
  • If the case is ongoing on the same date, it will continue under the current rules.
  • If the case is ongoing in an EU court or will need to be put into action in an EU country, it may need to be done under a different court or a different procedure. Consult with your family law solicitor about how this may change.
  • If the arrangements have been made final, then you and your children should not be affected. However, any further applications may need to be made to a different court.

Maintenance Cases

  • If the child maintenance case was resolved and recognized by an EU court before 29 March 2019, you should not be affected.
  • If your case is ongoing, it will continue unchanged and will be heard under the current rules.
  • New or further applications after Brexit may need to be made to a different court or a different process.
  • A child maintenance decision that you want to be recognized and enforced in an EU country after 29 March 2019 will need to be referred to the Reciprocal Enforcement of Maintenance Orders (REMO) unit.
  • Cases that involve the paying parent, recipient, and children who all remain in the UK are not affected.

International Parental Child Abduction

  • After 29 March 2019, the rules about abduction or wrongfully retained children in the the EU countries will largely remain unchanged.
  • If you are an applicant who wishes the return of a child abducted to an EU country by the other parent or relative, you should still consult with a family law solicitors that specialize on this particular situation.
  • Local legal advice in the country the child was taken to should preferably be obtained.

Further Impact on Family Law

If the UK leaves the EU on 29 March 2019 and there is no deal (no Withdrawal Agreement), then EU will immediately will immediately cease to apply at 11 p.m. on 29 March for England and Wales. Northern Ireland and Scotland are considering separate arrangements.

However, despite the potential of immense political turmoil and uncertainty, family lawyers must be able to plan for their clients and their cases.

The UK leaves the EU at 11 PM on 29 March 2019, as currently scheduled at the date of this note. There is presently, late-January 2019, immense political turmoil and uncertainty as to the circumstances of leaving, and even the possibility that it may be later. But family lawyers must be able to plan for their clients and their cases. The Law Society and Resolution have already published practical guidance and recommendations and will provide further assistance to allow local family solicitors to plan their cases properly.

Don’t hesitate to consult with your family solicitors as soon as possible to prepare for how how Brexit may affect your ongoing cases.

legal aid cuts uk

There was once a time when about 80% of all British People were eligible for legal aid. Hiring a lawyer doesn’t come cheap, but the government had sought to provide since 1949 a public pool of money for those who can’t afford to hire an attorney. The foundation of justice process was supposed to be made available to everyone in the country no matter how much they earn. If you are arrested, you are always entitled to free legal advice. The legal aid sector has traditionally been provided by almost a cottage industry of small legal firms, who then apply for funding on a case by case basis.

But over time and since the recession in 2008, that dropped down to now 29%. Cuts in 2004, 2006, and 2010 introduced fixed legal fees. Providers pulled out of complex legal areas like immigration and asylum. Legal aid services have needed to close or split focus towards more lucrative private work.

Then the 2013 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) happened.

What’s Wrong with the Old System?

It was argued that a reform for the £2 billion legal aid system because it was considered one of the most expensive in the world. Eligibility would be stiffened, those who earn more than £3000 pounds a month should be able to hire their own lawyers, and migrants would have to prove they were legal residents first.

It was supposed to be a plan to reform the system and save up to 350 million pounds per year. But among the slash cuts, the changes also meant that some types of cases were no longer eligible for public funds except in very specific circumstances – these include divorce, child contact, welfare and benefits, employment, criminal negligence, and housing law.

Huge areas of civil law were removed from the scope of legal aid, and these are the cases where the great bulk of citizens need assistance most often. Criminal cases remain in scope for legal aid, subject to testing for the economic means, but most people are not criminals and still need affordable legal advice.

For changes meant to provide more value to the taxpayer who pay the costs, it ended up impacting those who actually needed legal aid the most.

Is Brexit to Blame for This Too?

The cut to civil legal aid cases have already come into effect since 2013. So this was a pre-Brexit concern. However the reason for the budget cuts was to reduce the deficit, so certainly this chaos is only going to exacerbate the problem.

Suffering Caused by Insufficient Funding for Legal Aid

The lack of free legal advice has seen family courts increasing represented by people having to act as solicitors and barristers in their own cases ,i.e., litigants-in-person.

“LiPs are a nightmare,” a judge spoke up on condition of anonymity. “99.9% do not understand what is going on in court or outside court; they don’t know a good point from a bad one; they don’t understand the law; they don’t understand what they have to prove and they don’t know how to ask a question. It is my firmly held view that the courts are full of people who would not be there if they had been able to approach a solicitor.”

Parents found themselves forced to struggle alone, trying to navigate a system designed for highly trained professionals at a most emotional and vulnerable time in their lives.

“‘Since drastic cuts to legal aid in April 2013, we have seen children unable to enforce the rights and protections that the law provides to them. Without legal support, they and their families simply cannot navigate the complex legal processes they face, which have life-changing consequences,” said Professor Carolyn Hamilton, Director of Research and International Programmes at Coram Children’s Legal Centre.

In the year before the cuts, from 2012 to 2013, over 570,000 people were given early legal advice. This covered all areas of civil law, including such important daily concerns like family, immigration, welfare benefits, and housing. By 2017-2018, the figure was now only near 140,000.

When the cuts were introduced, the government expected advice agencies and law centers to naturally fill the gap – but they also had their budgets cut. Now all those who would have been given their due access to legal advice before now could only make do by their own bewildered selves or give up entirely.

Another consequence of legal aid cuts was the sharp decline in the number of couples that enter mediation to resolve their differences. Children were often a casualty of such heavily acrimonious exchanges.

“There are many outbreaks of bad behaviour in the family court. That’s why it’s good to have third parties there. For individual parents, it’s unendurable stress. It’s an arcane system and now there’s no one there to explain it to them,” said Penny Scott, a solicitor at Cartridges Law in Exeter and chair of the Law Society’s family law committee.

Deep cuts to legal aid fees for solicitors and barristers have also driven many lawyers out of fields that were formerly covered by legal aid. Deep cuts to legal aid fees for solicitors and barristers have also driven out many lawyers and promising new hires from fields that were formerly covered by legal aid. The nature of legal aid work, with its unpredictable and social hours, and high workload, make it an almost impossible task to combine with their own family life.

This leaves what the Law Society has termed “advice deserts”, large parts of the country where claimants cannot find any experts to consult.

“I would say be careful not to confuse legal aid solicitors with commercial or civil solicitors, who earn far more in general,” said Solicitor Alex Chapman. “My salary is comparable to a policeman or a plumber and we’re not paid quite as handsomely as you might think.”

Hope for the Future

In September of 2018, the Equality and Human Rights Commission (“EHRC”) published a report at the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) since it came into force in 2013. The conclusion has been that it was a pretty terrible affair at all levels.

Yes it has saved the government money, but at the cost of much more human suffering. “Labour helped these devastating legal aid cuts along. Now it’s time to fix it,” said former lord chancellor Charles Falconer.

The Bach Commission on the Right to Justice Report recommends a legally enforceable right to access to reasonable legal assistance as part a new Right to Justice Act.

Legal aid is a foundation for a civilized democracy. Without it, people cannot enforce their rights or defend themselves against the state. Legal advice and representation is similar to healthcare – it’s not something you wish to have to use, but should be there when you need it.

Article by Hadaway & Hadaway Family Solicitors in the North East UK.