Human Law Mediation Blog: Recent Posts

According to Personnel Today,  Nottinghamshire County Council is considering outsourcing services to the private sector.

The council is to ask private companies how they would run services such as catering and highways, and at what cost,

Council spokesman Tim Malynn said the review could help towards planned savings of £120m over the next four years.

He added: "Like every other council in the country, we are facing financial pressures and we must seriously look at who is best placed to provide some services."

The council spends £60m and employs 3,000 people in the services earmarked for privatisation, and Unison, which represents the staff, said it is willing to work with the council to protect the jobs concerned.

Unison's Mike Scott said: "We realise the council has got to cut back, but this is not the way to do it. The council seems hell-bent on privatisation and that is what this is all about."

Against this background of the key questions is whether the trade unions and management can align to put forward a common approach. Maybe mediation skills will represent a way forward.  

Recently, I read a thoughtful paper written by Rosalyn Rahme CEO of Goldjobs, which is the appointments portal for salaries commanding £100,000 / €140,000 and above. She writes:

 "Generation Y (defined as being born mid 70’s to early 90’s). As many senior executives are left standing open mouthed when the 10th mid management employee who has spent the last year working 9-5, ignoring the financial and business crisis of the past 12 months asks about the level of his ‘bonus’ for this Christmas and an ‘oh by the way what will my expected pay-rise be for next year’ I believe we must first look at ourselves. Those glib expressions we could not resist feeding to the media in the 80’s and enjoying the good times with no reference to the difficult struggles so many businesses faced in the 70’s.

Perhaps one of the biggest killjoys of the late 20th century has been the teaching of ‘work/life balance’. By inference, the term itself has an entire generation thinking consciously or unconsciously that work is somehow ‘outside’ of what is life. The phrase ‘work/life’ balance has inferred a negative connotation on working – be it a job or career. I have worked alongside a generation who justify any shortcoming in their lives by saying ‘work is spirituality void’, ‘work was addictive and the cause of a marriage break-down’ or ‘work is unenjoyable: an experience endured rather than enjoyed’; a generation able to make excuses for failures, or the cost of success, by looking at work as separate to everything else that makes up our lives.

Of course life is one holistic whole rather than a juggling or balancing act between work and all the rest of our existence! We led Generation Y to believe ‘they could have it all’ and forgot to say how…."

This is thought provoking material.

1 I can think of at least two companies I work with where they prefer to avoid recruiting so called Generation Y people and they prefer what they perceive to be older, more commiited workers. The type of worker they like are those which are committed, will not turn to their lawyer at the first sign of trouble and have loyalty to the organisation. 

2. As a society which can now live in an era of conscious choice brought up on an entitlement to human rights, there is a danger of tipping the other way. We expect everything for nothing. We have perhaps got to learn that in order to obtain great money, we have to work for it. In order to find work fulfiling, we have to graft at it.  

3. I can directly vouch for the tendency of clients to blame work problems for say marriage difficulties. Sometimes this can be someone just looking elsewhere for problems which stand closer to home.

4. Of course there is no turning back. We will not go back to the job for life, the paternalistic organisation which knows it is great at everything. But maybe, just maybe, Generation Y needs to get rid of its sense of entitlement. The danger is that they will lose out in the job market unless they change their ways.

Justin Patten, Employment Solicitor      

Doubts have been raised over the implementation date of The Equality Act 2010 after the Government Equalities Office (GEO) removed the October 2010 date for implementation from its website.

The Equality Act received Royal Assent on 8 April and the bulk of the legislation was due to be implemented in October.

But the GEO's website no longer displays that date, and a fact sheet on the Act just states: "The provisions in the Equality Act will come into force at different times to allow time for the people and organisations affected by the new laws to carefully prepare for them." 

It's certainly odd that the date has been withdrawn but certainly no excuse to just ignore the likely impact of the Act.

The Act introduces a number of reforms, including: prohibiting employers from asking questions about health before offering a candidate a post; and provision to make regulations requiring employers with at least 250 employees to publish information relating to the differences in pay between men and women (expected to come into effect in 2013).

Watch this space...

The Equality Act 2010 can be viewed on the OPSI website.

Something must be seriously wrong when a senior judge is advising people to keep as far away from the law as possible.

The comments were made by Lord Justice Mummery in a Court of Appeal decision. He was considering whether to allow an appeal by a restaurant owner who had been ordered to pay £14,777 in compensation to a former employee for unfair dismissal and disability discrimination.

The restaurant owner, David Piper, had attempted to lodge his notice of appeal with the Employment Appeal Tribunal (EAT) in person. But the office was closed, and so his notice was not lodged within the six-week deadline.

Lord Justice Mummery ruled that the appeal should not be allowed on the basis that the six-week time limit was generous and, in any event, Piper's claim had no reasonable prospect of success.
The judge expressed some sympathy with Mr Piper saying he was “sympathetic to all litigants who get caught up in our legal system” and went on to advise that people are “best off having nothing to do with it.”

Hardly words to instil confidence are they? Perhaps this particular Lord Justice is reflecting what others have believed for some time. The law in England has become so complex and convoluted that it’s beyond the understanding of those required to comply with it.

As lawyers we have to study the rules, know the Court deadlines and make sure we file the paperwork correctly, but for he layperson understanding all the intricacies is no mean feat. This case does however highlight an important point for anyone taking a case to the Employment Tribunal and that is that strict deadlines have to be adhered to, there are no second chances and no exceptions. Miss a deadline and your claim may be struck out, a default judgement awarded against you or in extreme cases you’ll be facing the prospect of paying your opponents costs.

Justin Patten
Employment law solicitor

A recent CBI Survey has shown that the rate of employee absence has fallen recently to the lowest levels since 1987. Employees still however take on average 6.4 days off through illness each year, accounting for 180 million sick days in total. The costs to companies and organisations are estimated at a staggering £16.8bn.

It does make you wonder with the World Cup looming whether absences might start to increase if England progress in the competition and people start skipping work to watch the afternoon matches or struggle to get into work the day after a famous victory.

I’ve commented in the past (Swine flu – your responsibilities and how to avoid difficulties dealing with malingering employees) as to the difficult balance between being understanding when people are genuinely ill and tackling those members of staff who use almost any excuse to take time off. If you are convinced you have an employee who’s not attending work when they could keep your cool but do tackle them when they return to work following your normal disciplinary procedure.

And during the World Cup? A bit revolutionary maybe – but if you think World Cup fever could be a real problem for your business why not consider thanking the staff that do make it – with free cakes or allowing them to go home slightly early. Or maybe, if it’s appropriate in your business, allow the radio commentary to be played out.

Anticipating any employee problems and planning is far better than ignoring them and hoping they’ll go away.

Justin Patten
Employment solicitor and mediator

An interesting piece in the Daily Mail.

A male lawyer was wrongfully sacked because his bosses feared they would be sued if they fired his female colleague while she was on maternity leave.

In a rare instance of a man claiming sex discrimination, John de Belin won £123,000 in damages after one of Britain's biggest law firms 'deprived him of his livelihood'.

Mr de Belin, 45, was one of two associates facing redundancy from Eversheds' property division in Leeds. The other was Angela Reinholz.

This shows how much of a minefield the law can be. Sometimes you take the path of least resistance and it ends up blowing up in your face.

Justin Patten, Employment Lawyer   

So we have a hung parliament.

This has already ben posted, but clearly this is what the parties should be thinking about. 

The key to who will be the next prime minister and the governing party lies in effective negotiation.

In other words, it will be the negotiation skills of the parties which will key in determining who forms the next government and the way this is done if (and it is an if) no party can form an effective government.

The question is, do the parties have an effective negotiation strategy?

The key to having an effective strategy is in effective preparation.

The best negotiators do not just effective preparation, but a lot of it.

As a mediator and a lawyer, if I was advising one of the three main parties, what would I be focusing upon?

1. Who is going to conduct the negotiations? Just because one is a party leader does not mean that he should be conducting them/fronting them. However, it will be crucial that whoever does conduct the negotiations has sufficient clout to be credible. As a consequence, figures who would have a chance of fronting the negotiations would be Lord Mandelson, Vince Cable or Kenneth Clarke due to their presence of gravitas. Others while being important figures may not have sufficient presence to make the grade.

2. Ensure stakeholders have been managed. Whilst the parties are understandably focused on the election, the last thing that any of the negotiators is going into a negotiation is being overly fearful about what their respective parties memberships will accept. Formally Cameron and Brown have a free hand in negotiations, Clegg does not. He is required by Liberal Democratic rules to get the support of 75% of the Parliamentary Liberal Democrat party, and 75% of the party’s Federal executive if he effectively wants to go into a coalition with another party. This places a significant limitation on his negotiation power.

3. Establish objectives and bottom lines. The parties should be looking at precisely what they are looking at from the negotiations. In the cold light of day, what is acceptable and what is not acceptable. At what point will they walk away? Could there be any circumstances when their walk away point will adjust? (E.g. If public opinion turns on any of the parties for some reason?)

4. Consider venues and use Of mediation. Attention to detail is one variable which sets out the really excellent negotiators from the satisfactory. As a mediator, I am frequently looking to enhance the venue to ensure that it makes the parties as comfortable as possible in the negotiations. Parties are impacted by their surroundings. The parties could consider mediation as well as a way to break deadlock rather than just trying to negotiate them.

5. Manage events. When I am advising/mediating an employee in a negotiation sometimes a quite incredible/unusual event comes out of the blue. For example, a boss can start behaving totally irrationally or a piece of evidence can emerge. By way of example, today we are reading about the Greek financial crisis. What happens if this boils over to a UK financial crisis? How would this play out in any negotiation with a hung parliament?

6. Avoid common negotiation pitfalls. According to the authors of Negotiation Genius, Deepak Malhotra and Max Bazerman, common negotiation pitfalls include:


You make a first offer that was not sufficiently aggressive;
You talk but do not listen;
You try to influence the other party but did not try to learn from them;
You do not challenge your assumptions about the other party;
You make greater concessions than the other party.

Avoid these pitfalls, and then you have a greater chance of doing better within the negotiations.

7. Manage people. We should never neglect the fact that we are dealing with people who have been battle scarred by the conduct of Parliamentary business over a number of years. The parties should be anticipating whether personalities will get in the way of any deal or alternatively, whether there is any rapport between the parties which can be used to enhance a deal.

Justin Patten, Lawyer and Negotiator

With the general election coming up and much talk of possible hung parliaments, some of you may be interested in this post of mine on the Totally Legally Blog site.

Justin Patten

An interesting piece on a relationship counsellor's bid to challenge his sacking for refusing to give sex therapy to gay couples has been turned down by the High Court.

Gary McFarlane, 48, from Bristol, was sacked by Relate Avon in 2008. He claimed the service had refused to accommodate his Christian beliefs.

Lord Justice Laws said legislation for the protection of views held purely on religious grounds cannot be justified.

He said it was irrational and "also divisive, capricious and arbitrary". 

Mr McFarlane said after the hearing that the decision not to let him appeal against the ruling left him "disappointed and upset".

Justin Patten, Mediator 

Congratulations in order to Philip Hesketh who has launched, the UK Mediation Forum.   This user created forum is designed to be a one stop portal for mediation information.

It is a great  place to look for:  Case law about mediation, articles and interesting blog posts and mediation news and discussions.

I know Philip and is a committed and effective mediator.

Justin Patten, Mediator