<!-- wp:image {"id":3890,"width":222,"height":265,"sizeSlug":"full","linkDestination":"none"} --> <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/11/giorgia-sessi-pupil-21-1.jpg" alt="Barrister Giorgia Sessi" class="wp-image-3890" width="222" height="265"/><figcaption> Written by Barrister; <a href="https://plp.m12development.com/our-barristers/giorgia-sessi/">Giorgia Sessi</a>. </figcaption></figure> <!-- /wp:image --> <!-- wp:paragraph --> <p>T<strong>he Farquhar report, authored by His Honour Judge Stuart Farquhar, was commissioned by Mostyn J (the National Lead of the Financial Remedies Court) to consider the future of the FRC and the role that remote hearings should play.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The findings of the report were based on a nation-wide survey conducted amongst judges and practitioners and on the observations of a working group formed of judges (full time and part time), solicitors and barristers with a broad experience in financial remedy cases, from low to high value assets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report was published on 22 October 2021 and is formed of two parts, which are summarised below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Part 1: remote hearings are here to stay</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report concludes that remote hearings should continue. 14 months into the ‘new normal’ (this part of the report was finalised in May 2021), it is clear that remote hearings bring advantages and disadvantages with them. Amongst the advantages are higher levels of efficiency, ability of judges to work nationally, conflict reduction, improved access for litigants and representatives. The disadvantages merely centre around the solemnity and formality of the process being somewhat undermined, technical difficulties, higher level of tiredness and the ‘loss’ of lay clients who do not have their advocate physically present. Interestingly in respect of final hearings, lawyers indicated that cross-examination can be as effective as in person, whereas judges observed that it is more difficult to assess credibility remotely and that they would benefit from seeing and hearing a party and/or witnesses in person. However, the consensus in respect of expert witnesses is that there is no reason why their evidence cannot continue to be heard remotely. In respect of FDRs, should the parties opt for a remote listing, such listing should be in the morning with an afternoon slot to enable advocates to update the court on progress.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report observes that hearings where no evidence is heard should continue as remote, with the exception of FDRs (although the lawyers involved survey indicated more cases are settling at remote FDRs), enforcement hearings where the liberty of the individual is at risk and appeals.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of platforms, MS Teams was chosen as the preferred remote hearing platform due to its reliability and simple interface, followed by Zoom (mostly supported by lawyers) and CVP (preferred by judges), with BT Meetme faring last.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report also deals with the use of private FDRs, with the majority of respondents reporting a higher settlement rate, but this is regardless of whether the private FDR takes place remotely or in person.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Areas of improvements for remote working were identified as follows:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Technology: CVP to enable breakout rooms or other platforms such as Zoom to be implemented nationally. Dedicated, trained court staff to operate the equipment.</li><li>E-bundles to be fully searchable, bookmarked, PD and e-bundles protocol compliant. Separate disclosure bundle only with permission. A common platform to share bundles should be considered. Sanctions for failure to comply.</li><li>Pre-hearing: advocates’ meetings to narrow issues; include time for judicial reading; better system to ensure judges receive documents on time.</li><li>Hearing: Coat of arms background for judges; regular breaks to acknowledge the tiresome nature of remote working; time limits imposed to lodge orders; listing future hearings there and then.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Part 1 of the Farquhar report is available </em><a href="https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-1-FRC-Remote-Hearings-May-2021.pdf"><em>here</em></a><em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Part 2: a more efficient system of dealing with low value cases</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The most interesting aspect of the Part 2 is the suggestion of a ‘fast-track procedure’, where low value cases (under £250,000 net assets) can be finalised within 6 months of filing the Form A. If the pilot scheme is successful, there is potential to increase the threshold to £500,000.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The pre-Covid statistics are eyewatering, with the average length of proceedings to FDR being 55 weeks and 84 weeks to final hearing. The fast-track procedure is aimed at improving the level of emotional distress on the parties and children of the family, which practitioners are all too familiar with, and enabling court resources to be freed up for the most complex cases. This procedure involves a fast-paced approach, which will require strict adherence from lay parties and professionals.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main features of the fast-track procedure are as follows:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Forms E, house valuations, mortgage capacities, questionnaires and replies all being available prior to the FDA.</li><li>Forms E to be exchanged within 4 weeks of issue.</li><li>Questionnaires to be exchanged 14 days after receipt of Forms E, with replies being due within 4 weeks of receipt.</li><li>Experts: Parties to agree on house valuations and CGT within 7 days of exchanging Forms E; with LOIs to be agreed within 2 weeks if no agreement is reached. Experts to be directed to provide a report within 4 weeks.</li><li>Preliminary documents to be filed 7 days before the first hearing.</li><li>The first hearing to be listed within 16 weeks of issue.</li><li>Offers to be made in advance of the FDA so that the hearing can be treated as an FDR.</li><li>The final hearing to be listed within 26 weeks from the issue of the Form A.</li><li>Final hearings to be listed for one day.</li><li>Parties to have an option to transfer to the ‘standard’ procedure in case of complexities.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The data collected within the report appears to suggest that just under half of the work carried out within the FRC involves cases under £500,000; therefore, this new procedure would have a significant impact on the volume of cases going through the FRC. The report concludes that this scheme should be piloted in no more than three separate FRC zones for a period of 12 months, with data being collected for evaluation prior to any wider rollout.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report also sought to address wider issues within the practices and procedures of the FRC and identified the following areas of improvement:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Judicial continuity: any interlocutory application (and particularly enforcement) to be made to the allocated judge unless impracticable.</li><li>Listing: no block listing for FR cases; ‘not before’ slot most appropriate; parties’ availability to be provided and listing to be arranged on the day of the hearing. FDAs to be listed for 1 hour; FDRs for 1.5 hours not in the afternoon (parties and advocates to be available for the whole day).</li><li>Staffing: a designated, trained member of staff to be responsible for each FRC hearing.</li><li>Litigants in person: a user friendly set of guidelines on the FRC process to be sent to unrepresented parties at the time of issue of Form A.</li><li>Forms E to be amended to include:<ul><li>Date of cohabitation</li><li>Mortgage capacity</li><li>Housing needs</li><li>What kind of settlement is considered fair instead of ‘order sought’</li></ul></li><li>FMH valuation: value of FMH to be agreed within 7 days of exchange of Form E; valuation / appraisal in default of agreement prior to FDA.</li><li>FDA documents:<ul><li>No statement of issues</li><li>Joint schedule of assets with differences highlighted</li><li>Chronology with differences highlighted</li><li>Joint case summary</li></ul></li><li>Skeleton arguments: to be significantly reduced in length, i.e. 5 pages for FDA to a maximum of 15 pages for the final hearing.</li><li>Advocates’ meeting: to be held 3 days before each hearing to narrow issues.</li><li>ADR: to be strongly encouraged, including use of private FDRs.</li><li>Draft orders: to be lodged prior to the hearing with areas of disagreements clearly marked. Final draft to be completed on the day of the hearing.</li><li>Asset schedules: to be provided in A4 (not A3) format and excel.</li><li>S25 statements: to be limited to 10-15 pages and contain evidence only, not ‘argument or rhetoric’.</li><li>Consent orders: to be sent in word version, with a proposed new statement of information which provides more clarity as to capital and income resources and the net effect.</li><li>Appeals: Lead FRC judges (if CJ) to be allowed to certify where an appeal is ‘totally without merit’. This is in light of the many groundless appeals made within the FRC.</li><li>Costs: parties to be clearly reminded of the cost consequences of breaches and failure to negotiate reasonably; Forms H to be included in the bundle.</li><li>Communication: documents to be sent to judges directly as well as the court.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><em>Part 2 of the Farquhar report is available <a href="https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-2-The-Financial-Remedies-Court-The-Way-Forward-September-2021.pdf" target="_blank" rel="noreferrer noopener">here</a>.</em></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><strong>Nicola Twine is a specialist Personal Injury, Clinical Negligence, and Employment barrister with over 20 years’ experience. In the article below Nicola outlines useful pointers on balancing duties when litigating with Ligitants in person.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>1.</strong> The growth in the number of litigants in person (LiPs) in the Employment Tribunal has been keenly apparent over the last 18 months, when dealing with cases remotely as a consequence of Covid19. <a href="#_ftn1">[1]</a> Whilst as lawyers we have had to familiarise ourselves with navigating electronic bundles and technology for remote hearings we have navigated through otherwise familiar territory.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>2.</strong> The LiP has had the unfamiliar through which they have to find their way expanded. The day in court that many LiPs have hoped for has not arrived but has been a day, or days, behind a screen. It is likely this will continue, certainly for some types of hearings, going forward.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>3.</strong> As a result, it is helpful to take some time and reflect on how as lawyers we should conduct cases when responding to claims against LiPs. It is important to understand the extent and limit of duties in the tribunal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Legal duties</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>4.</strong> We have a duty to our clients, to the court, and the administration of justice, as set out in The Legal Services Act 2007 at s1(3) which provides that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c) …authorised persons should act in the best interests of their client.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d) …persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independent in the interests of justice.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>5.</strong> It is the duty to the court which is paramount. This is reflected in the regulatory framework for both sides of the profession. The Barristers Code of Conduct states clearly at gC1 that the duty to the court in the administration of justice overrides any other core duty<a href="#_ftn2">[2]</a>, if and to the extent that the two are inconsistent. The Solicitors Regulation Authority Handbook contains provisions with similar effect.<a href="#_ftn3">[3]</a> Most significantly, chapter 11 provides that a solicitor must ensure that unfair advantage is not taken of an opposing party’s lack of knowledge where they are a LiP.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>6. </strong>The duty may conceivably operate to potential disadvantage of a client, by obligating submission of authorities that are unhelpful to a case. At gC5 the BSB Handbook makes specific reference to this highlighting that it is particularly important when acting against LiPs to draw to the attention of the court any decision or provision which may be adverse to a client. This is to prevent unfair advantage and to ensure that both parties are on ‘an equal footing’ in accordance with the overriding objective.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Guidance for lawyers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>7.</strong> In 2015 the Law Society, the Bar Council and CILEx jointly prepared guidelines for lawyers facing litigants in person in the courts.<a href="#_ftn4">[4]</a> Despite the age of the guidelines, and the fact they have not been updated to address remote hearings, they remain a good reference setting out good practice. It is recommended they are read in conjunction with the section on litigants in person within the Judicial College Equal Treatment Bench Book (ETBB) <a href="#_ftn5">[5]</a>, which book all Judges must have regard to<a href="#_ftn6">[6]</a>. Chapter 1 of the 2021 edition concerns litigants in person and lay representatives.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>8. </strong>Dealing with litigants in person can be at times frustrating and time-consuming. It is not uncommon to be presented with pleadings that appear as ramblings, where the claims have to be identified, and witness statements that deal with each and every event that occurred in the workplace for a period spanning years. Nor is it uncommon to have litigants in person who are angry and frustrated holding unrealistic expectations as they are so involved in their own case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>9. </strong>The ETBB reminds us that the flagged difficulties faced by LiPs generally stem from lack of knowledge and that LiPs tend to:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. Be unfamiliar with the language and vocabulary of proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> b. Have little knowledge of proceedings;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> c. Be ill informed about ways of presenting evidence;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> d. Be unskilled in advocacy;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> e. Be unable to understand the relevance of the law and regulations in relation to their own problem;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> f. Be unable to understand the concept of a cause of action;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p> g. Lack objectivity and emotional distance from their case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>10.</strong> We can add to the list that LiPs tend to be unfamiliar with, and nervous about, the use of technology for conducting proceedings. They are less likely to have the required technology than a lawyer and may not be able to comfortably operate it to conduct a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong>Practical pointers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Communication</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>11.</strong> Ensure both in and outside of the tribunal that you are clear in communications, as well as courteous and co-operative. Legal jargon is to be avoided where possible. Any written documents such as applications, skeleton arguments, and submissions should be comprehensive to the lay person and sent in advance of a hearing, again where possible.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>12.</strong> If circumstances permit, notice should be given of any applications to minimise objection from a LiP and the potential need for adjournments to proceedings, which may result in adverse costs orders.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>13.</strong> In any hearing, when interjecting it is helpful to explain why, recognising that the LiP may not know what has caused interruption to their submissions or questioning and the importance of their being able to follow and participate in proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Preparation</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>14. </strong>The tribunal will generally expect the represented party to take responsibility for preparation of bundles, provision of copies, and to draw up any orders. This should be anticipated. Time should generally be allowed for agreeing the content of trial bundles recognising the LiPs do not always understand what renders a document relevant, so start preparation early.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>15. </strong>Where authorities are to be relied on those should be provided to the LiP ahead of a hearing. Furthermore, it is helpful if specific passages to be relied on are marked for the LiP, as the EAT requires on any appeal.<a href="#_ftn7">[7]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Assistance</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>16. </strong>There should be preparedness to assist LiPs at hearings when identifying claims and issues.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>17. </strong>In Cox v Adecco &amp; Ors UKEAT/0339/19/AT, an appeal against an order striking out a claim made at a preliminary hearing, it was stressed that before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and issues in the claim. Moreover, with LiPs this involves more than requiring a preliminary hearing to say what the claims and issues are but requires reading the pleadings and core documents that set out the claimant’s case. Amongst a number of general propositions advanced it was stressed<a href="#_ftn8">[8]</a> that respondents, particularly if legal represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not take procedural advantage of LiPs, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner expected of a lawyer or the wrong label is applied.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>18.</strong> It is to be recognised that the tribunal has a duty to make procedural allowances to a LiPs difficulties and vulnerabilities and to demonstrate sensitivity. This may dictate how proceedings are conducted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Reflection</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>19.</strong> Sensitivity has to be demonstrated to a LiPs’ difficulties. Time should be taken in each case to determine what these might be and what practical steps might be taken, in the interests of the court and the client, to assist the smoother running of a hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>20.</strong> Practically, if it is believed that a LiP is vulnerable and that there needs in terms of participating in proceedings have not been recognised this should be brought to the attention of the tribunal.<a href="#_ftn9">[9]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>21.</strong> In April 2020 the Employment Tribunal issued presidential guidance on vulnerable parties and witnesses<a href="#_ftn10">[10]</a>, which stresses the importance of active case management, adjustments for vulnerability, and addresses vulnerability in the context of capacity to litigate. Lawyers are advised to familiarise themselves with this guidance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>22.</strong> Guidance on the appropriate course of action where a representative forms a view an unrepresented claimant might lack capacity to conduct litigation was given in Jhuti v Royal Mail Group Ltd UKEAT/0061/17. Whilst both the presidential guidance and that in Jhuti leave many questions unanswered, such as how to investigate capacity where the evidence is not clear, both stress the importance of raising capacity early if it is a potential issue. This is despite there being no bar to a party without capacity conducting litigation in the Employment Tribunal, unlike in other jurisdictions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>23.</strong> Procedurally, regard has to be had to difficulties there may be with compliance. As was recognised in Cox, when dealing with LiPs requests for additional information should be as limited and clearly focussed as possible. Repeatedly asking for additional information and particularisation rarely assists as LiP to clarify the claim<a href="#_ftn11">[11]</a>. More often assistance is required.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Compliance</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>24. </strong>Lawyers must ensure that they comply with rules and practice directions and be aware that a failure to do so, when there is a LiP in particular, may lead to adverse consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>25.</strong> Where there has been non-compliance by with practice directions and court orders by a LiP the tribunal will be keen to ascertain why. In reality some degree of assistance and leniency is often given due to the difficulties faced by LiP but in many cases there comes a time when a court will impose a sanction, particularly where an infarction has implications for the litigation process and represented party.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Costs</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>26. </strong>Represented parties are advised to carefully consider whether to apply for costs against a LiP in any given case, even where there is finding of some unreasonable behaviour or consideration that a claim had limited or no prospects. The gravity and effect of any unreasonable conduct or failure, as well as means to pay are relevant factors for consideration.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>27. </strong>Whilst the threshold tests are the same whether a party is represented or not the application of those tests is to take account as to whether a party is professionally represented or not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>28.</strong> The EAT in AQ Ltd v Holden [2012] IRLR 648<a href="#_ftn12">[12]</a> observed that a tribunal cannot and should not judge a LiP by the same standards as a professional representative. It was held that: whilst the law is the same, the application of that law and the courts exercise of discretion, must take into account whether a litigant is professionally represented; a tribunal cannot and should not judge a LiP by the standards of a professional representative as justice requires professional standards are not applied; and that even if the threshold tests are met the tribunal has discretion whether to make an order having regard to all the circumstances. This has since been followed with approval in Vaughan v London Borough of Lewisham UKEAT/0534/12/SM.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>29.</strong> In Oni v Unison UKEAT/0370/14/LA the importance of considering means was stressed once there has been a finding of unreasonable conduct. The tribunal had there erred in assuming that once unreasonable conduct was established a costs order should follow. The means of a paying party are to be considered twice. Firstly, in considering whether to make an award of costs; secondly, if an award is to be made in deciding how much.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>30. </strong>The unreasonable behaviour on the part of the LiP has likely to be significant to result in a costs order. This was the case in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16. In that case three Employment Judges had told the claimant that her claims were not adequately particularised. In considering costs the Judge accepted that the claimant was a litigant in person and so (in accordance AQ Ltd v Holden) should not be  held to the standards of a lawyer but her continued ability to provide particulars amounted to unreasonable conduct justifying costs against her. The Judge did consider whether there was vulnerability by reason of stress, anxiety or illness, that affected the failure to particularise and decided it was not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><strong><u>Conclusion</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>31.</strong> An understanding of the party as well as the claim is the key to conducting a case against a LiP. This is to minimise the risk of any appeal, avoid unnecessary adjournments, assist the smooth running of the claim, and to ensure that competing duties are discharged.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br><br>Nicola Twine</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden<br><br><br></p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1">[1]</a> The five yearly <a href="https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018">https://www.gov.uk/government/publications/survey-of-employment-tribunal-applications-2018</a> survey conducted in 2018 found 46% of Claimants used a lawyer for some or all of the proceedings whereas 77% of employers had representation. It is the number of unrepresented Claimants that is believed to have increased markedly.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2">[2]</a><a href="https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html">https://www.barstandardsboard.org.uk/for-barristers/compliance-with-your-obligations/the-core-duties.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3">[3]</a> Chapters 5 and 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4">[4]</a> Accessible via <a href="https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers">https://www.lawsociety.org.uk/en/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5">[5]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf">https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6">[6]</a> This is regularly updated and its relevance and importance in Employment Tribunal proceedings has been recognised judicially.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7">[7]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf">https://www.judiciary.uk/wp-content/uploads/2020/06/Practice-Direction-2018-19-09-19_.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8">[8]</a> Paragrpahs 28 to 31.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref9">[9]</a> As considered in Higgins v Home Office [2015] UKEAT/02961/14/LA and East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref10">[10]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref11">[11]</a> Paragraph 32.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref12">[12]</a> In which the writer represented the employer.</p> <!-- /wp:paragraph -->

<p>Robert said:&ldquo;At first sight, Labour's pledge offers practical benefits for the HR sector. One unified definition of &lsquo;worker&rsquo;, with no qualifying periods, to assess the rights of all staff.&nbsp;</p> <p>&ldquo;But, as ever, the devil will be in the detail.&nbsp;</p> <p>&ldquo;What are 'full rights'? Would &lsquo;workers&rsquo; really obtain valuable unfair dismissal rights on their first day? Would &lsquo;workers&rsquo; be defined as they are now, or does the promise to include the &lsquo;gig-economy&rsquo; and &lsquo;bogus self-employed&rsquo; signal a further widening? And what about agency workers, apprentices, or those on probation?&nbsp;</p> <p>&ldquo;With such key questions still to be answered, clarity will be vital, lest we have a repeat of the minefield of cases which have plagued the question of employment status. That would certainly delay any practical benefits for the sector. For now, the jury must remain out.&rdquo;</p> <p><em>You can read Robert&rsquo;s thoughts on HR Grapevine </em><a href="https://www.hrgrapevine.com/content/article/2021-07-28-labour-unveils-plans-to-give-all-workers-same-legal-rights"><em>here</em></a><em> and find out more about his areas of specialism on </em><a href="https://www.parklaneplowden.co.uk/barristers/robert-dunn"><em>his barrister profile</em></a><em>.</em></p>

<p><em>Specialist employment barrister </em><a href="https://www.parklaneplowden.co.uk/barristers/richard-ryan"><em>Richard Ryan</em></a><em> has recently been quoted by </em><a href="https://www.retailgazette.co.uk/blog/2021/07/the-controversial-approach-of-fire-rehire-in-retail/"><em>Retail Gazette</em></a><em> on </em><em>the legalities of fire and rehire strategies. Here, you can read his extended thoughts on the rise of the controversial strategy across the UK retail sector.</em></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Why are retailers undertaking a fire and rehire strategy?</strong></p> <p>Clearly, the impact of Covid 19 has had a significant impact on all aspects of retail. When there is an impact on turnover or profit, one of the areas that senior directors will look at is staffing costs &ndash; and this is something we are seeing at play in the retail industry at present.</p> <p><strong>Is fire and rehire legal? If so, is it more seen as being unethical? </strong></p> <p>Fire and rehire is, generally speaking, legal. In essence, it is like any contract. One party can say &lsquo;here is the old contract we wish to end in accordance with its terms; and here is the new one we would like you to enter into in order to manage our new relationship going forward&rsquo;. However, fire and rehire can become unfair depending on the process followed and the nature of the consultation. It can be a very technical area of law and each case rests on its facts.</p> <p>Whether it is ethical is a subjective judgement. It could be argued that it is ethical to try to avoid redundancies by making wholesale changes to terms and conditions, as the alternative is that people would lose their jobs.</p> <p>However, the process followed by the employer is likely to frame whether the decision is widely viewed as ethical or not. For example, has the employer adopted a sensitive approach to the changes and listened to counter proposals from staff? What steps are to be taken for those significantly affected?</p> <p>While the answer to these questions are likely to lead to personal judgements about whether the decision is ethical, it is important to note that that law is not determined by ethics. Employers do have some discretion here and a tribunal is unlikely to challenge a well-reasoned and genuine business decision.</p> <p><strong>What are the pros and cons of fire and rehire?</strong></p> <p>The pros of fire and hire for any retailer implementing the changes are commercial &ndash; it allows the business to create savings, which may be required if the retailer is facing financial difficulty.</p> <p>The cons are the disruption caused by implementing the changes and potential impact on employees. &nbsp;For example, it could unsettle them, and certain staff may be more affected than others. The decision could also lead to claims being brought against the business, which could be costly.</p> <p>A further potential complication involves redundancy entitlement; it may be that the proposal amounts to a redundancy. In theory, an employer could be faced with all its staff wanting their redundancy entitlement and to leave their employer.</p> <p>In any event, even where redundancy is not an issue, unrest amongst staff is always a possibility. A unionised workforce is likely to rely on their union to protect their position and be engaged in any consultation process. Often, due to the risks, employers initially seek to agree the changes by way of consent.&rdquo;</p> <p><strong>Did the strategy of fire and rehire come as a result of the Covid-19 pandemic?</strong></p> <p>There can be many reasons why a retailer may encounter financial difficulty and, therefore, pursue a strategy of firing and rehiring employees. However, it is unquestionable that Covid-19 has had a major impact on the economy and that the retail sector has not been unaffected.</p> <p>&ldquo;Therefore, we may see an increasing number of situations where retailers pursue fire and rehire strategies due to the economic pressures of the pandemic.</p> <p><strong>What is the government doing to regulate this? </strong></p> <p>There have been calls from trade unions and political parties for the fire and rehire strategy to be banned. However, at present the Government does not have any plans to outlaw the practice.</p> <p>&nbsp;<strong>What are legal experts&rsquo; views on this strategy? Is it viable? Is it fair?</strong></p> <p>The fire and rehire strategy has been around for many years and is both viable and potentially fair.</p> <p>In instances where a retailer is implementing the strategy, it is likely that it will need to take legal advice on the process and be supported by HR professionals.&nbsp;</p> <p><strong>What can retailers learn from the controversy surrounding fire and rehire strategies?</strong></p> <p>Many retailers will be very conscious of the negative publicity &ndash; and potential reputational damage &ndash; that could be caused by implementing a fire and rehire strategy.</p> <p>Whilst driven by their commercial needs they will also, naturally, want to mitigate any employee unrest if the business does need to consider such measures.</p> <p>Where this is the case, it&rsquo;s important for retailers to engage in a fair and open consultation process with employees.</p>

This year the <a href="https://www.law.ac.uk/landing/pupillage-fair/">ULaw Pupillage Fair</a> will be a virtual event, held on Saturday 14th November from 12pm - 3:00pm. Meet a wide range of chambers and help improve your chances of securing <a href="https://www.parklaneplowden.co.uk/recruitment/pupillages">pupillage</a>, there is also the opportunity to take part in a wide range of talks and employability workshops. <div id="heading-accordionItem_15120_2" class="accordion__header"> <h4 data-toggle="collapse" data-target="#accordionItem_15120_2">The agenda</h4> </div> <div id="accordionItem_15120_2" class="collapse show" data-parent="#accordion_15118"> <div class="accordion__body"> Our Pupillage Fair will take place virtually on the University of Law's online events platform, Hopin. <strong>Start time:</strong>&nbsp;12.00pm <strong>End time:</strong>&nbsp;3.00pm Throughout the event you'll get the opportunity to 'visit' interactive stands where you can talk to the exhibitors and ask any questions you may have. We'll also be running regular talks and panel sessions throughout the event, including: <ul> <li>12.15pm - Our Bar Practice Course (BPC)</li> <li>1.30pm - Pupillage Interviews Panel</li> <li>2.30pm - Applications and Gaining Experience During COVID</li> </ul> &nbsp; Book your place <a href="https://www.law.ac.uk/events/event-booking/?id=8D5CE24A-32EC-EA11-A815-0022480076D0">here</a>. </div> </div>

<p>The article examines the tension between the paramountcy principle from The Children Act 1989 of the Welfare of the Child and implementing Practice Direction 12J. It considers the difficulties courts have in putting into practice PD 12J, in particular the listing of fact-finding hearings within a court system that can’t list those hearings within a reasonable time frame because of lack of judicial time. <a href="https://www.parklaneplowden.co.uk/barristers/john-jackson">John Jackson</a> argues that many Judges and CAFCASS Officers who have been brought up considering that fact-findings hearings are not in the child’s long-term interests are finding it hard to go against their instincts in listing fact finding cases to establish domestic abuse in its ‘control and coercive’ forms.</p> <!-- wp:paragraph --> <p>This article also argues that the Scott Schedule, used for many years in private law fact-finding hearings, is out of date, difficult to use in court and suggests a change in practice should take place favouring a findings document (similar to a threshold document in public law), which in particular should focus on how the abuse suffered by a parent risks impacting on the welfare of the children.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The article in full can be viewed <a href="/app/uploads/2022/02/Jordans-The-Tension-between-Domestic-Abuse-004.pdf">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>John Jackson is a member of the <a href="https://www.parklaneplowden.co.uk/expertise/family-children">Family Team</a>. To view John's profile in full, click <a href="https://www.parklaneplowden.co.uk/barristers/john-jackson">here</a>.</p> <!-- /wp:paragraph -->

Following on from their recent blog post on pupillage applications, our civil pupils <a href="https://www.parklaneplowden.co.uk/barristers/bethan-davies-pupil">Bethan Davies</a> and <a href="https://www.parklaneplowden.co.uk/barristers/emily-slocombe-pupil">Emily Slocombe</a> share their experiences in pupillage interviews and provide guidance on making a good impression. <strong>Make a good first impression</strong> Making a good impression is important throughout your legal career and this starts with pupillage interviews. Make sure you arrive early.  This is especially important if there are tasks which you are required to complete before the interview. That said, if you are going to be late for any reason then do call chambers. Be presentable and dress smartly in a dark suit. Think court dress and you should be pitching it just right (wigs and gowns are not necessary though!). Be polite to <em>everyone</em> you meet! You might not realise who you are speaking to and all those you meet are likely to be asked for feedback. You want to be memorable but not for the wrong reasons. At the Bar how you treat people around you is very important. <strong>Make the most of mock interviews</strong> It is worth seeking out any support available, interviews can be very stressful and having a practice run (or two) can really help ease the inevitable nerves. If you are currently studying for the BPTC your provider will have a specialist career service with experience conducting mock pupillage interviews. Further, some providers allow alumni continued access to their careers services. If you are involved in an Inns of Court mentoring scheme, or alternatively a scheme within your University, do not be afraid to ask your mentor to run through a mock interview with you. <strong>Have (or fake) confidence</strong> How you come across in an interview will give your interviewers a flavour of how you will ultimately come across in court. Whilst your application is a form of written advocacy your interview is your oral advocacy. This means that you need to have conviction behind your answers. When asked a question it is fine to take a moment to think about a well-reasoned answer. Taking time to come up with an answer which you feel good about, and can explain the reasoning for, will come across much better than rushing to come out with an answer which you then cannot back up. One of the reasons it is important to have confidence in your answers is because your answer will at some point be challenged. This does not mean that your answer is wrong, it actually might mean the opposite. However, the panel want to fully understand how you have got to your answer and whether you are willing to stick to it when challenged. Imagine in court, you have made a submission and now the judge is putting questions to you. You aren’t going to back down and concede your whole case. This is the same as your interview. Having said this, if you realise that you have made a mistake, it is ok to hold your hands up, admit your mistake and explain why you have now changed your view. <strong>Thoroughly prepare legal questions</strong> Often Chambers will provide questions or an exercise to prepare before the interview.  This may be in preparing a written document or an advocacy exercise. Use this to your advantage - having thoroughly prepared this exercise means you can be confident you have done all you can. If you don’t fully prepare you are doing yourself an injustice. This links back to first impressions. If you haven’t prepared for the advocacy or failed to do the written work it may look like you don’t care, or don’t want it enough – remember you will be up against tough competition! It is likely to be acceptable to take in notes for these questions.  However, only take in notes. Do not write a script and just read it. We also think that making a bank of questions between friends works well. It gives you a chance to see questions, or themes, which regularly come up and spend time planning these. <strong>Keep up to date with current affairs</strong> Frequently interview panels will ask questions about current affairs, be these legal or non-legal topics. Whilst you cannot be expected to have an encyclopaedic knowledge of every broadsheet, you should be abreast with recent major national and international news, current “hot topics” and legal news stories. There are lots of ways to ensure you are up to date, the legal sections of national newspapers are exceptionally helpful and you could consider setting Google alerts for legal updates in specific practice areas. As well as legal blogs, there are several fantastic legal podcasts such as the BBC’s Law in Action. <strong>End on a high </strong> Almost invariably your interview will end with you being invited to ask a question. At this stage all eyes are on you. Whilst preparing for this final stage may not be a priority, it is worth some consideration.  A good question will end your interview on a high. A thought-provoking and interesting question allows you to do two things: garner information about Chambers that you otherwise have been unable to ascertain, and indicate to the panel what factors are important to your future career choices. We hope that our advice will stand you in good stead for any pupillage interview. Good luck!

With Gateway applications closing on 7th February and some non-Gateway sets closing significantly earlier, including Parklane Plowden on 12^th January, those seeking a career at the Bar currently find themselves in pupil application mania. Only 12 months ago we were both in the midst of applications, and the stress and confusion this time of year can bring is an all too recent memory. With that in mind, we here provide our six top-tips for pupillage applications.<strong> </strong> <strong>Know Your Audience </strong><strong> </strong> Before you even start writing an application research the chambers to which you intend to apply. Make sure you know not only what their practice areas are generally, but the specific areas in which they are offering pupillage. If you are unsure whether you are a good fit, take a look at the profiles of junior tenants and current pupils; this provides an indication of the kind of candidate chambers are looking for. <strong>Legal Research </strong> Once you begin the substance of your application ensure that your answers are well researched; legal knowledge-based questions are the ideal arena in which to illustrate an ability to thoroughly research the law and provide succinct, detailed and accurate analysis. Further, ensure you are informed in regards to current trends, updates and challenges in the areas of law in which you are applying. If there are significant changes proposed to an area of law ensure you are familiar with these and the potential impact they may have on your prospective practice areas. <strong>Spell Check</strong><strong> </strong> It is not merely what you say, but how you say it; there is no point preparing fantastic content but leave it littered with spelling mistakes or grammatical errors. This may be one of the most tedious aspects of preparing a good pupillage application, but read your work until the prospect of reading it again makes you want to cry! When you think you have rectified all errors, print out your application and read it aloud. Once you have done that, hand it to someone else to proof-read for you too. Remember to keep an eye on apostrophes – it’s Chambers, not Chamber’s. <strong>Be Concise</strong><strong> </strong> A pupillage application should illustrate that you have the skills needed to succeed at the Bar; a key one of these is the ability to distil the crux of a question and answer it succinctly. You should ensure that you are answering the question that has been asked, without including unnecessary information. The word count is there for a reason: providing a well-argued answer within this guide illustrates an ability to argue efficiently and evaluate your best points. <strong>Have a Personality </strong> Remember that your paper application is all a prospective Chambers will know about you unless and until they invite you to interview. You need to make yourself more than just an education. Most other applicants will have similar academic credentials to you and so this will not necessarily set you apart. Chambers want to know whether you will fit the feel of that particular chambers as well as being a good barrister. Hobbies are a good way to stand out and be remembered, they also give the reader of your application a chance to connect with you on a more personal level. <strong>Share Your Successes</strong> Successes should be shared in your application form; this could be receipt of scholarships and awards, or something unconnected to the law. Showing you have the drive and determination required to succeed gives prospective chambers an idea of your work ethic. If you read this and think that you haven’t got any successes to share, speak to your friends and family because you will have some. No matter how small they may seem to you they are worth sharing. Finally, don’t give up. It can be a long process and everyone's experience is different but keep trying. If you aren’t successful this year then go back through your applications and see where you might have gaps to improve on ready for the next round. If you are interested in a Civil Pupillage please apply using the form on our website, which can be found <a href="https://www.parklaneplowden.co.uk/pupillages">here</a>. CLOSING DATE FOR APPLICATIONS: 12pm on 12th January 2020.

<p><span class="css-901oao css-16my406 r-1qd0xha r-ad9z0x r-bcqeeo r-qvutc0"><a href="https://www.parklaneplowden.co.uk/barristers/simon-wilkinson">Simon Wilkinson</a> discusses&nbsp;<em>"Who blinks first? Disputes between the court and local authority on respect of the care plan and welfare of the child"&nbsp;</em>and <a href="https://www.parklaneplowden.co.uk/barristers/phil--booth">Phil Booth</a> discusses&nbsp;<em>"Rules on Contempt Proceedings"&nbsp;</em>in the November issue of Family Law.</span></p> <p><span class="css-901oao css-16my406 r-1qd0xha r-ad9z0x r-bcqeeo r-qvutc0">A link to the published articles can be found <a href="https://store.lexisnexis.co.uk/products/family-law-journal-skuuksku00147281FLJ73543/details">here</a>.</span></p>