Legal news of late has come thick and fast, and last week was no exception. As we take up the slack of another working week, let’s take a moment to get our bearings with a look at three areas of recent upheaval: the Tier 2 (General) shortage occupation list; access to employment tribunals; and the application of EU human rights law in UK courts.

AJTC chair questions George Osborne’s employment tribunal changes

The Administrative Justice and Tribunals Council (AJTC) chair, Richard Thomas, has criticised the government’s plans to charge for appeals to employment tribunals. Thomas suggested that this was part of a broader Government strategy to stymie “the demand for redress” and consolidate its cuts to legal aid. He suggested that such cuts are making it more difficult for individuals to enforce their employee rights, sometimes against unfavourable decisions by the state; and that these measures fail to address the underlying causes of increases in employment disputes in recent months and years. The Government, it seems, will have the last laugh: the AJTC will soon be abolished under its QUANGO-cidal designs and replaced by the Government’s own Ministry of Justice.

Tier 2 Shortage Occupation List changes

From 14 November 2011, biology teachers at secondary schools, speech and language therapists, pharmacists, orthoptists, surgeons of the veterinary kind and orchestral musicians hoping to work in the UK will not be able to take advantage of the shortage occupation list. These cuts are countered by new additions to the list, including actuaries, high integrity pipe welders, environmental scientists and geochemists. Good news for some; though let’s hope we don’t degenerate into a bunch of slurring, tone-deaf creationists.

The Lord Chief Justice Lord Judge stresses UK judicial independence

Speaking to a committee assessing proposals to replace the Human Rights Act with a UK bill of rights, the UK’s most senior judge, Lord Judge (yes, that really is his name), has stressed the UK’s judicial independence from the EU. Lord Judge emphasised that (in his view) the UK courts were not bound to follow the European Court of Human Rights in Strasbourg in interpreting human rights law and adjudicating human rights-based cases: they must consider its findings and would in most cases follow them, but need not do so necessarily. In one sense Lord Judge’s remarks are commonsensical and uncontroversial. What’s interesting, and what remains to be seen, are the implications of his remarks: do they express a determination on his part, perhaps representative of an entrenched judicial attitude, to resist EU law where possible? Do they instead serve to demonstrate that the Human Rights Act need not be repealed and that nothing will be gained by replacing it with a bill of rights? At the very least, Lord Judge’s comments should serve to loosen the tongues of EU speculators and worrywarts for next little while.

I don’t know if you heard but amidst the economic doomsday, the EU Commission published a communication last week that signalled some good news for lawyers and judges all over the European Union. And by good news we mean it’s time to stock up on stationary, buy new textbooks and rekindle the passion and love for education. You can leave the school uniform at home though. Learning is a lifelong process, don’t you know?

The communication is a plan to train more judges, lawyers, prosecutors and court staff in EU and member state law in order to create the practice of EU law smoother for all of those involved. The training is split into two, massive aims for the Commission- firstly, the legal practitioners should be trained in EU law and secondly, they must be trained in the laws and procedures of all other member states. The latter does seem like the most work as we’re talking about 27 different judicial systems but they are expected to at least understand how the systems work in order to avoid any confusion or unnecessary misinformation. But this isn’t all it! Legal practitioners should learn languages to help avoid getting lost in translation, and the results of this are argued to be detrimental to the legal process. And I’m afraid rusty GCSE French just won’t cut it.

The better trained lawyers and legal practitioners are in the EU law field, the more they can help their clients. EU law is a whole different kettle of fish that has its own rules and if it works in the favour of the client and is utilised well then it can help win cases that may be considered hopeless. This is especially with regards to immigration and employment matters. The recent Zambrano case is a fine example of how EU law can give way to ground breaking decisions at the European Courts of Justice (ECJ) that directly affect the justice system in the UK. However, this won’t happen if the lawyer has no clue about EU law. 43% of judges and prosecutors have not even had a glance at EU law, and out of those that do practice Union law, 63% have not had any initial training. It is for this reason that the Commission is so keen to upgrade the practice of law across the EU.

If we want tangible aims, the Commission included a clear goal in the communication; ensure that around half of all legal practitioners (approximately 700,000) should have participated in some form of European judicial training by 2020. If the number 2020 seems familiar it’s because it fits neatly into the Europe 2020 Strategy, which aims to rejuvenate EU employment, climate, social inclusion, innovation and education by, well, 2020. The EU Commission has great plans for new judges and prosecutors, who will go on a two-week exchange programme (how very European!) from 2014 onwards. The training can be taken at existing institutions and national bars- this helps with the flexibility of the different lawyers from different countries. In the meantime initial training will be focused upon in order to make sure all Member States have at least some in EU law. This is considered to be doable in at least week. Then there is continuous training for those who want to strengthen their knowledge throughout their careers. The Commission will aim to hold an annual conference to churn out clearer ideas by listening to the different member states and understanding how to go about making this mammoth of an idea work out.

The EU can churn out many good ideas, such as this one, but of course its actual existence depends entirely on the enthusiasm of member states, the ECJ and the Commission itself. Cash rules everything around the EU so grants will be crucial to the success of the training. The EU’s crippled economy is the beggar that cannot choose, so any proposal (as it is predicted this one will be) that will no doubt help the finances should hopefully be welcomed with open arms. To all the legal practitioners in the UK, time to get in touch with your European side and crack open the textbooks because it’s back2skool (sorry).

Now if you’ve ever stayed at a hotel, I’m sure most of the time you don’t see housekeeping. You walk into your room and everything is fresh, folded, neat and cleanly tucked away. It’s almost magical and I personally get a bit excited with the luxury, and then instantly a sense of shame washes over me. I don’t know whether it’s my social class or just my Turkish upbringing, but having other people clean up my mess feels…odd. Even when they’re paid to do it.

This goes back to the age-old comment of “well, it’s their job! That’s what they’re meant to do”. Of course, housekeepers and domestic workers are in the service sector and of course, they are paid to clean and take care of hotel rooms. But I consider them equals to myself, and I like to show my gratitude by making their life easier and picking up my own mess when I can (I hope my mother is reading this)

This isn’t the case for some. Unfortunately, there are reports of domestic workers suffering unfair treatment, such as abuse, harassment and, in some cases, rape.The hugely publicised Dominique Strauss-Khan (DSK) case brought these issues to the fore. Mr Strauss-Khan’s case, in which he was accused of raping a domestic worker in the US, was dropped due to court’s finding that the domestic worker lacked witness credibility, but it raised questions over whether the domestic worker would have been treated differently by the media had she not been an African migrant housekeeper. If one positive has been derived from the DSK case, it is recognition of the plight of the domestic worker, both here and overseas.

The DSK case is one example calling into question the extent to which domestic workers are being protected. Migrant domestic workers need to be protected by the UKBA and British domestic workers need to be protected by their employers and UK employment law. Sadly, this is rarely the case. There is a reason why obtaining statistics of the abuse of domestic workers is so difficult, and that’s because most of the workers do not want to talk. If the domestic workers do speak up about the abuse they endured, they tend to be shut down by their employers, such as hotel management. The inherent power dynamic where management wants to please the customer is unfortunately present. The whole concept of “the customer is always right” taints those that work in the service sector to the point where they must regularly “shut up and put up” with abuse from clients and customers.

The Government is proposing to change the visa for domestic migrant workers so that they cannot switch employers. The right to change employers was battled out in lobbies a few years ago and it seems we’re going one step forward, two steps back. This right was one of the few instances where a domestic worker could get out of an unpleasant employment experience and onto a better one. Organisations such as Kalayaan will no doubt battle the Government if these proposals get the go-ahead. Nevertheless, the harsh reality that domestic workers and housemaids have historically been disenfranchised and devalued to the point of legal non-existence is worrying. As Cassandra Hurley, our lawyer on the Employment team at Mulberry Finch points out, “domestic workers are low paid, and from an employment law perspective often have no money behind them to start legal proceedings meaning that the employers get away scot-free, safe in the knowledge that their employees can’t afford legal advice”

Employers should protect their own, no matter how awkward a situation may be, and Governments should enforce better protection for those that are economically and socially less fortunate.  While the DSK case is unpleasant, it does call into question what is being done to those that have to tolerate abuse and do not have a voice even if they protested. It may be “their job” to clean and tidy, but it is not their job to tolerate abuse.

Oral resignations at board meetings are also effective if the resignation is not contested by the other directors that are present. It should be specified when the resignation takes effect (immediately or end of the meeting) and the outgoing director should always follow up the oral resignation with a written letter of resignation in addition.

It is vital to follow the procedural steps when resigning the post of a director (or indeed any office holder) in order to avoid any detrimental future liabilities from materialising.

The original deal that was scuppered by the Court was to send back 800 asylum seekers to Malaysia and in exchange, accept 4,000 refugees over a period of 4 years. This was considered unlawful and many thought this to be the end of any kind of deal with Malaysia, especially as Malaysia is not a signatory to the UN Refugee Convention. Gillard’s stubborn pursuit of the implementation of the Malaysia deal speaks to much broader considerations at work. Since those travelling to Australia on boats accounts for a mere 3% of the total number of migrants but it can be argued the Malaysian “solution” is probably no longer about fixing the “immigration problem” but more about political stubbornness from a Government no longer considered popular.

The deal, which caused much controversy with human rights groups, was signed last month and aimed to send 800 migrants back to Malaysia for the UN to deal with the processing of refugee claim. In return, the Australian government would accept 4,000 refugees from Malaysia over a space of 4 years, with the condition of the refugees having UN certification.

The Australian Prime Minister, Julia Gillard, relied upon this deal significantly for her solution to resolving the immigration “problem” in Australia. This was puzzling for many statisticians who pointed out that only 3% of Australia’s migrants travel to the country on boats. Nonetheless, the government made this a focal point and it now has no hope of going ahead.

Human rights groups are reassured with the High Court decision, as they argued that the deal to send back 800 migrants back to Malaysia would be unwise, especially as Malaysia failed to sign the UN refugee treaty.  Reports of poor treatment are also rife, so the High Court’s decision has relieved refugees and migrants alike.

The Australian government, however, is disappointed. The main point of the deal was to deter migrants from travelling by boat and reduce people smuggling. The deaths of the migrants that were on boats that travelled rough seas were also aimed to be reduced. The critics of this deal argued that sending the refugees back to Malaysia, where their treatment would be questionable, was not an alternative. The two refugees who brought the case to the High Court are delighted by the result as they believed they travelled to Australia with the hope that they would be protected from the treatment they would receive in Malaysia.

Australian domestic politics has long battled over the issue of immigration and this is not exception this year. The current government has attempted to reduce numbers despite the small number of immigrants entering the country. This past year has seen a mere 5,000 immigrants arriving to Australia. The image of refugees arriving to the country on boats from Malaysia may be a worrying image but it is important to note the small percentage of these migrants. Most migrants travel to Australia on planes, which results in easily processing them into the system through border agencies.

There are three key restrictions imposed upon those wishing to be appointed directors, and they include:

• The person must not have already been disqualified from being a director by a court. If this person has been disqualified, they must have the court’s permission before they can be considered for appointment again.
• The person must not be an undischarged bankrupt. Again, if they are, then they must ask the court’s permission before applying for appointment as a director.
• The person must not be under the age of 16.

Once these thresholds are met, the Articles of Association (“Articles”) must be taken into account. The Articles are set rules that every company should have to determine how the company is to be run. Usually they are simple guidelines, such as how many directors there should be, how long the directors can serve and what happens when the directors come to the end of their term. If there is an absence of Articles, or these are not registered with the Registrar of Companies, the Companies Act 2006 offers various model Articles to match certain types of businesses.

Once the director has been appointed (including of course the formality of lodging the appointment form with Companies House) there is the matter of the director’s contract. This contract will of course differ considerably from the contract of a normal employee, and the difference means that various factors must be taken into account. Many companies look to the Combined Code for guidance but the requirements differ considerably from company to company. Some of the stickier points in a director’s contract (often referred to as a “service agreement”) include remuneration and bonuses. Bonuses can be especially tricky and the drafting around these points is critical:

• Ensure that the director and the company understand the terms of a bonus scheme;
• If the director will have a clear contractual entitlement to a bonus then this makes the situation simpler. But if the bonus entitlement is based around the consideration of the board or the remuneration committee then this should be drafted in accordingly;
• Bonus schemes are usually discretionary but there are possibilities on the legal side to challenge the discretion;
• The company board and remuneration committee should differentiate between a director’s pay and performance and how they relate. There should be some link with regards to pay and performance, and a director should be given an annual bonus based on their performance.
• An upper limit may be set on annual bonuses; and
• Protocols around dispute resolution are advisable.

It was found after some investigation that the firm did have unfair contract terms as it demanded disproportionately high cancellation fees, and an extremely aggressive selling method that tended to leave out the truth.  Additionally, as well as collecting overdue payments in an illegal manner, they also demanded the customer pay for money that was not actually owed.

Many businesses prepare questionable contracts and expect to enforce unfair and misleading terms without repercussions. In this instance, the firm was also compelled by the court to inform and notify all of its members of the ruling and to give their members the option of ending their contract if they felt they were subjected to unfair contract terms or commercial practices.

“Please note that the above post contains a summary of a United Kingdom case report made publically available online through official reporting sources. Accordingly, the summary does not constitute an opinion of Mulberry Finch, and  serves only to provide the relevant details from the case in question.”