Understand Your Rights. Solve Your Legal Problems
The CEO of Australia’s largest law firm has departed by “mutual agreement” following a firestorm over an internal email expressing disappointment over the firm’s decision to accept Australian Attorney-General Christian Porter as a client.
Annette Kimmitt resigned as head of MinterEllison on Wednesday, a week after sending an email to staff saying she felt “hurt” to learn that senior partner Peter Bartlett – who was not explicitly named in the message – was advising Porter over a rape allegation. The email was later leaked to news media.
“The acceptance of this matter did not go through the firm’s due consultation or approval processes,” Kimmitt wrote. “Had it done so we would have considered the matter through the lens of our purpose and our values.”
“The nature of this matter is clearly causing hurt to some of you, and it has certainly triggered hurt for me. I know that for many it may be a tough day, and I want to apologise for the pain you may be experiencing.”
Kimmitt’s email drew criticism as it emerged that Porter had a relationship with a firm predating the publication of the rape accusation by four months and that, as the most senior partner at the firm, Bartlett may not have been required to seek approval before giving advice to Porter.
In an email sent to staff at 10:00 PM this Wednesday, MinterEllison chairman David O’Brien said Kimmitt’s immediate departure had been “mutually agreed”.
[ymal]
"We have thanked Annette for her years of service and dedication and wished her well for the future," O’Brien wrote.
Kimmitt was appointed CEO in July 2018, and by the time of her departure was halfway through a five-year contract.
Lawyer Monthly hears from Hina Belitz, specialist employment lawyer at Excello Law, on exactly what the Supreme Court's ruling means for employment law.
The word landmark can sometimes be overstated to describe judgments. But in one of the most significant employment cases for decades, the Supreme Court’s recent judgment against Uber certainly justifies that epithet.
Six justices of the Supreme Court handed down a unanimous decision which dismissed Uber’s appeal. Instead, the court backed an October 2016 employment tribunal ruling in favour of 25 drivers who argued that they were not self-employed because Uber controlled much of their work by allocating their customers and dictating their fares.
In dismissing Uber’s argument that its drivers were independent contractors who worked under contracts made with customers and not for Uber, Lord Justice Leggett said:
“Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill”.
Unlike the self-employed, workers are entitled, amongst other rights, to receive a minimum hourly wage and paid annual leave. The judgment upheld the tribunal’s decision that Uber drivers should be classed as workers with access to the minimum wage and paid holidays – in accordance with the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
This is manifestly an historic decision, not only for Uber drivers in the UK but also for many other workers in the domestic gig economy. Uber now faces a potentially enormous compensation payout to tens of thousands of its drivers while millions of workers in the wider gig economy may benefit from better terms as a result.
This is manifestly an historic decision, not only for Uber drivers in the UK but also for many other workers in the domestic gig economy.
Uber had argued that because its drivers are independent self-employed “partners”, they are therefore not entitled to the basic rights enjoyed by workers, which include a legally enforceable minimum wage and other statutory benefits. But the judges concluded that any attempt to draft artificial contracts that were intended to circumvent basic statutory employment protections were void and unenforceable.
The Uber judgment validates the role of the employment tribunal whose conclusion was agreed by the Supreme Court. Traditionally, such tribunals have had difficulty in deciding on the thorny issue of employment status - caused by the mixture of ‘markers’ that point to one status or another, and further complicated by the creation of the hybrid worker status, often referred to as ‘Self-Employed Plus’, which falls between self-employed and employee status.
The factors used to determine true status include how much control a person has in the working arrangement and the ability to improve their financial standing through entrepreneurial skill - something which Lord Leggatt aptly pointed out.
Employers everywhere will pay great attention to this judgment. Given the latent liabilities and costs that every employer might otherwise face, the ruling will undoubtedly result in a sea-change in how they deal with the classification and management of their staff.
[ymal]
In terms of whom they employ as workers, the choices open to gig economy companies are now clear, as are the implications of trying to create arrangements for such staff to avoid the ‘workers’ classification. The Uber decision has shown that the courts will not hesitate to look at the reality of working arrangements (as opposed to any labels attached to them) in deciding if an individual is a worker rather than being self-employed. Longstanding legal ambiguity on the point has been eliminated.
Global law firm Hogan Lovells is opening a branch in Dublin, the firm announced on Tuesday.
The office will be the firm’s 17th to open in Europe and will initially focus on financial regulatory and antitrust work. A number of the firm’s London-based lawyers, who specialise in these practice areas, will relocate to the Dublin office.
“Putting clients at the centre of everything we do is a strategic priority for the firm, and having a presence in Dublin is about doing just that,” said Christopher Hutton, Hogan Lovells’ new Dublin office managing partner, in a statement. “Hogan Lovells opening an office there is welcomed by our existing clients, and also presents new opportunities. I am excited to head up the firm’s new offering in Ireland.”
The firm has not ruled out the possibility of offering training contracts or the opportunity for trainees to be seconded to its new Dublin office.
Hogan Lovells is the latest firm to open an office in Dublin following Brexit. Ashurst launched in the Irish capital earlier this month, while Dentons did so last September.
Prior to Brexit, international firms that maintained major offices in London would serve Irish clients from the UK. Circumstances changed last November when the Law Society of Ireland ruled that English- and Welsh-qualified solicitors who had previously gained admission to the Irish roll would be required to have a physical base in Ireland to maintain their EU practice rights there.
[ymal]
Aside from the aforementioned firms, Dechert, DLA Piper, Fieldfisher and Pinsent Masons have all opened offices in Dublin following the Brexit referendum. It is likely that other international firms will soon do the same to continue to practice in Europe.
Being a witness can be nerve-wracking. There’s already too much stress and trauma after witnessing or being the subject of a crime. To add to that, the lengthy court proceeding can take a toll on anyone. The impending examination won’t be easy—even if you’re on the side of truth.
In the course of a trial, cross-examination will be scheduled to allow the opposing counsel to test the reliability and consistency of a witness’ statements. During cross-examination, a witness will be asked to retell facts, events, and remember details that are relevant to the case. The legal counsel of the opposing party will interrogate and ask clarificatory questions from the witness. This seems easy in theory, but the reality is different.
Since there is a considerable amount of time in-between the happening of the incident (or crime) and the trial itself, a witness may have difficulty remembering all the exact details of the event. A legal counsel may also ask leading questions to try to confuse the witness. And if a witness is unprepared to handle pressure, his or her statements might end up being detrimental to the case.
This is where witness familiarisation comes in. Witness familiarisation is a kind of training that’s given to witnesses or persons who will testify in court hearings. Its primary goal is to prepare witnesses to avoid poor performance during court proceedings. It’s a crucial part of litigation because the quality and reliability of a witness’s testimony can make or break the outcome of a case.
This training isn’t only applicable to factual witnesses or individuals who witnessed the crimes; it can benefit expert witnesses too. These include psychologists, doctors, and other medical experts who can help shed light on forensic evidence and medical records that were gathered in a case.
The primary goal of witness familiarisation is to prepare witnesses to avoid poor performance during court proceedings.
The strength of evidence is a crucial element to win court battles. While evidence may consist of objects and documents, it is also common to call a witness who can narrate facts or tell statements that can help the jury envision what really happened in the case.
Even though a witness is truthful and in good faith, he or she may still get nervous and lost during the proceedings. This can result in consequences that negatively impact a case. This is particularly true when experienced lawyers start raising doubts about their testimonies. Some lawyers employ tactics that would infuse confusion or panic to a witness, and make them succumb to pressure that will later affect their statements.
With training from a witness familiarisation program, both factual and expert witnesses can answer and explain their testimony to the legal counsel and the court more confidently. Depending on the provider, this training is usually divided into two parts:
[ymal]
The trainers are usually composed of barristers and experienced professors in the legal profession. They are required to follow a strict set of rules to guarantee that the program doesn’t violate legal procedures and ethics.
Witness familiarisation is lawful because its main goal is to help witnesses be informed of the processes of a court proceeding or a criminal trial. By showing and exposing witnesses to how judicial proceedings work, the witness can participate more confidently and would be more competent in giving his or her testimony.
However, ethical issues could arise in the course of the training. That’s why there are strict requirements and limitations for trainers and the people involved in the course. For example, persons who are handling the training must not be personally involved with an ongoing case that a witness is being called to.
Those in the legal profession have an innate sense of when something that starts out minor could develop into an issue. As soon as that happens, lawyer-mode switches on. But most of the general public don’t have the ability to determine if a seemingly small accident or injury could become a court matter, so may end up implicating themselves unknowingly. Humans tend to apologise unnecessarily or accept blame in certain situations to smooth things over anyway. But how important is it to get people to think like a lawyer and not say sorry when an incident looks like it may occur?
Sorry seems to be the hardest word, at least in the eyes of the law. Apologising is often seen as an admission of guilt. In accidents that could result in insurance payouts, apologising can often see the claim dismissed if the claimant is seen to have been in some way responsible. Insurance companies especially look for ways in which the claimant could accept some of the blame.
There is an interesting case for malpractice suits, especially in the medical field. While the defendant would want to avoid apologising or accepting blame publicly on the legal matter, if they fall under the media’s fire then they could feel the urge to apologise for image protection.
Even PR experts would suggest that saying sorry in such a situation could end up irreparably damaging the defendant’s image as the apology is then used to show they were fallible. Mortification strategy is often used to ensure the right balance is attained to show remorse and empathy while remaining unimplicated.
[ymal]
According to McGinley Solicitors, admitting liability when it comes to road traffic accident claims especially, could cause the claim to be thrown out and compensation lost. Saying that you are sorry, that you didn’t spot the light, or that you didn’t see a sign could be an acceptance of blame. Many people say these things without thinking, even when the accident is objectively not their fault. Anything that can be quoted could be used in a claim or in court later on - even if you feel it was said in the heat of the moment.
Admitting liability is an especially thorny subject when it comes to accidents on public-owned land, for example. Decades of precedent mean that the onus is on the claimant to prove not only the provenance of the trip hazard but that the owner/council knew about the hazard and had adequate time to do something about it. Usually, this means proving they knew about the issue six months prior to the accident. If at any point in this claim, the claimant comments on their walking ability, suggests that they tripped of their own accord, or admits to not paying attention (being on the phone) then the claim is harder to prove.
When an accident occurs, no matter how small, it’s important to remain level-headed and to think carefully about every word we say. This comes down to fighting human instinct to offer reassuring words or accept culpability to help ease an awkward situation. But the wrong words could end up implicating someone as responsible for an accident or injury that they weren’t to blame for and could hamper a case or claim.
Alec Colson, Head of Employment Law at Luton-headquartered law firm Taylor Walton, explains the grounds an employer might have for mandating employee vaccination and the circumstances where potential employees could bring discrimination claims against them.
As increasing numbers of employees become eligible for a vaccine and a return to the workplace draws nearer, some employers have stated it is their intention to require employees to be vaccinated against the coronavirus as a condition of employment.
Whilst there is currently no legal provision to address this issue, the Chief Medical Officer has stated that health professionals have a professional obligation to take the vaccine and the case for care home staff to be vaccinated appears to be overwhelming.
To require an employee to be vaccinated raises a number of legal issues and any employer considering such a move will need to tread carefully and take into account their own business requirements before making a decision.
Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks. Also, under section 7 of the HSWA 1974, an employee has a duty to co-operate to enable a company to comply with any statutory requirements including steps to reduce workplace risks.
Although employees will need to be assured they are working in a safe environment, it’s unlikely to extend to employees being legally required to take the vaccine in all business sectors.
Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks.
It is expected that guidance will be offered on what measures an employer may be required to take, but initially the Government decided it was a matter for employers, whilst now there is discussion around vaccines becoming compulsory for staff in certain sectors, or the need to be tested regularly.
The meaning of ‘reasonableness’ in the health and safety legislation is likely to depend on the circumstances of the employer and the services it provides.
For example, an employer in the social care sector requesting its employees to take the vaccination could be argued to be a ‘reasonable management request’, as refusing it could pose severe risk to fellow employees and patients, threatening the business.
Dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.
The position in other sectors is likely to be less clear and in any event, an employer should proceed with caution before deciding to dismiss. Employers will need to consider alternatives, which may include moving the employee to another role involving less contact with clients or other employees.
Some employees may argue they will not pose a risk if they work from home, and given that for many this has been the situation recently, this argument may carry some force in certain situations.
Employers will need to consider alternatives, which may include moving the employee to another role involving less contact with clients or other employees.
Employers might consider making the vaccine a condition of employment for new employees, but this is not without its problems as potential employees can still bring discrimination claims. Therefore an employer must carefully consider the risks, which include but are not limited to:
It is unlikely that an ‘anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. Although an employee may believe vaccines are harmful, legislation requires the belief to have a certain level of seriousness and importance, worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
Not all vaccines list their ingredients, and if they include gelatine or use it in the production process an employee with certain religious beliefs or vegans may have grounds for refusal.
If an employee’s doctor advises them not to take the vaccine, an employer’s requirement for them to be vaccinated may amount to disability discrimination. An employee’s fear of needles may also amount to a disability and the employer would need to consider whether it could provide alternative working arrangements.
The current government vaccination programme is mainly based on age, so a requirement to have a vaccine currently indirectly discriminates against younger employees on the basis that younger employees are unlikely to be able to obtain a vaccine in the near future.
Therefore, an employer would need to objectively justify why it is not employing staff without the vaccine due to the fact that individuals have not been able to obtain the vaccine because they are in a lower priority group due to their age.
It is unlikely that an ‘anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010.
Public Health England’s current advice states: “women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine”.
Therefore, a requirement to take the vaccine for a pregnant employee, or an employee planning a pregnancy, may amount to indirect sex discrimination.
Personal data collected in connection with an employee’s vaccination records will be ‘sensitive personal data’ or ‘special category’ personal data and will need to be processed in accordance with the data protection legislation.
The Information Commissioner's Office (ICO) website has a vaccination section that provides useful guidance for employers. There are 10 conditions for processing special category data in Article 9 of the UK GDPR.
Outwardly, an employer’s requirement for an employee to have a COVID vaccine appears a ‘reasonable instruction’ for their own safety and that of others in the work place.
However, the position is complex and raises numerous legal issues which will need to take into account the requirements of the employer and the individual circumstances of the employee, shaped by ongoing advice from the Government.
[ymal]
The vaccine is a huge step forward, but should be considered the next chapter in the pandemic story and sadly not the end. Employers will need to tread carefully, whilst encouraging staff to take the vaccine when it becomes available to them and if doubts persist, seek expert legal advice.
France Digitale is set to file a complaint against Apple with data privacy watchdog CNIL on Tuesday targeting the Personalised Advertising system used in the tech giant’s flagship iPhone series.
In a seven-page complaint seen by Reuters, the lobby claimed that the system – which displays ads in the App Store, Apple News and Stocks apps based on individual user data – did not ask for users’ permission before using their data to implement the targeted ads.
France Digitale states that, while iPhone users are asked for permission before installed apps gather identifying data, the devices’ default settings allow Apple to launch targeted advertisements without clearly asking users for their consent beforehand.
Under EU data privacy regulations, firms must ask digital users for permission before collecting their data using trackers or other tools.
France Digitale represents the bulk of France’s digital entrepreneurs and venture capitalists.
“It’s a startup version of David versus Goliath, but we are determined,” the llobby’s CEO, Nicolas Brien, said in a statement.
Apple has denied the claims listed in France Digitale’s complaint. “The allegations in the complaint are patently false and will be seen for what they are, a poor attempt by those who track users to distract from their own actions and mislead regulators and policymakers,” the company said in a written statement.
[ymal]
The legal action from France Digitale is reminiscent of previous complaints alleging that Apple’s systems illegally handle user data without permission. In November, the Austrian advocacy group Noyb filed a complaint with data protection watchdogs in Germany and Spain claiming that iPhones’ IDFA technology contravened GDPR and the ePrivacy Directive.
Nearly half of the UK public picture lawyers as white, and one in four assume that they will be male, according to research released on International Women’s Day.
The study was conducted by research agency TLF on behalf of The University of Law (ULaw). In a sample of 2,000 survey respondents, it found that 25% would assume a lawyer to be male, and 48% would assume them to be white.
TLF’s research also found that 28% of respondents would expect a lawyer to wear natural or very little makeup, while only 8% would expect them to have a full face of make-up. Just 6% of respondents expected a lawyer to be from a working-class background.
Of the survey’s female respondents, only a quarter said they feel fully represented in the legal profession, and one in ten said they do not feel represented at all.
“This research has highlighted a stark reality, which is that more needs to be done to redefine what someone working in the legal industry can look like,” said Patrick Johnson, director of equality, diversity and inclusion at ULaw. “It is no longer a profession solely for upper class white males, but in fact, accessible to all.”
Johnson emphasised that, while there is still progress to be made, the legal sector is making steps towards gender parity. Among the current ULaw cohort, he said, “77% of undergraduate and 67% of our postgraduate students are female.”
[ymal]
ULaw’s theme for International Women’s Day this year is “Choose to Challenge”; its goal in researching common perceptions of lawyers was to challenge them and amplify voices that feel unrepresented in the sector.
Philip Turvey, executive director at Anglia Research, examines the issues facing probate genealogy in the UK and how it could be reformed.
The COVID-19 pandemic has emphasised the importance of acting transparently and ethically. Some sectors, such as the motoring industry, have used the pandemic to re-gain consumer trust and address the crisis in confidence by helping to manufacture ventilators for hospitals.
This effort has resulted in some fantastic PR for the likes of General Motors and Ford – but it’s certainly not PR for PR’s sake. These companies are part of the global effort to eradicate COVID-19, and their actions have forced them to take a step back and think about what is truly important.
With the vaccine rollout underway, the return to normality after the pandemic offers a chance to change an industry for good. Businesses can look to move past the morally dubious and unethical practices that were commonplace pre-COVID-19.
Probate genealogy is one industry that needs to reset post-pandemic.
Despite the importance of the practice – with one in three people dying without a will – the sector is awash with self-proclaimed heir hunters who often have little to no experience or training. These wannabe probate genealogists have overcharged beneficiaries and, to cut corners, they conduct minimal research and do not attempt to find all entitled relatives, perhaps because other family relations are harder to find.
With the vaccine rollout underway, the return to normality after the pandemic offers a chance to change an industry for good.
Similarly, our research has found that some ‘probate genealogists’ have made informal deals with local councils over high-value estates. This has stemmed from intensive marketing efforts by heir hunters to local authorities in which misleading information and quasi legal advice is given. In 2019, Anglia Research surveyed 350 local authorities across England and Wales and found that 57% of these local governing bodies were passing on information regarding estates exclusively to a sole heir hunting firm.
When local authorities provide heir hunters with exclusive leads, they don’t just encourage excessive fees, they also risk compromising the quality of the research. For instance, imagine that details of an estate worth hundreds of thousands is passed exclusively to an heir hunter who then locates beneficiaries. Who checks that these are actually correct? The Government Legal Department’s Bona Vacantia Division can’t, because any cases passed exclusively to a single heir hunter bypasses this process, and other probate genealogy firms can’t check the validity of the results because they don’t know about the case.
In short, the process allows corners to be cut and doesn’t reveal any mistakes made by inexperienced, unqualified heir hunters.
But how did this unethical practice emerge?
The popular TV series, Heir Hunters, certainly contributed to the boom in self-proclaimed probate genealogists by sensationalising the sector and glamourising certain aspects of the work. However, another factor that has contributed to transparency issues in the sector is the lack of statutory regulation. Unlike the banking sector, which is monitored by the Financial Conduct Authority, the probate genealogy sector is not formally regulated.
Membership to self-regulating bodies, such as the Association of Probate Researchers, which has an independent compensation and complaints scheme, is entirely voluntary. The body has no statutory power to enforce industry wide membership, nor can they punish any rogue actors within the sector.
[ymal]
The combination of untrained probate genealogists and a lack of regulatory authorities creates the perfect environment for underhand tactics to spread. Independent regulation and meaningful accreditation are practices we at Anglia Research have in place to guarantee transparency. These practices should be adopted industry-wide if we are to change the sector for good.
The end of the pandemic in the coming months gives the probate genealogy sector a chance to draw a line in the sand and adopt a more ethical, transparent way of working with clients.
As mentioned above, accreditation is one way to improve the probate genealogy sector. Recently we’ve seen companies claiming they’ve won industry awards – or even set up their own awards scheme, which of course they win – but it’s no longer enough to just pay lip service by subscribing to organisations and societies. Nor is it sufficient to only gain accreditation so you can put the symbol on your website or business card.
If probate genealogists are serious about following ethical practice, then they must abide by the industry body rules and show that they have the competence to comply and uphold best practice. Furthermore, local authorities must conduct due diligence and withhold from engaging in partnerships with unethical firms or those with bad reputations. To avoid failing a compliance audit they should follow government guidelines by referring all qualifying cases to the Government Legal Department’s Bona Vacantia Division. Local councils need to stop creating monopolies and facilitate peer assessment to help reform the sector.
Pre-COVID-19, probate genealogy was going down the wrong path. Inexperienced heir hunters were leaving beneficiaries short-changed. However, like most sectors, the pandemic has given us the chance to reset. If we can put the above steps in place, then we’ll start moving away from our unethical past and become a sector that operates in a way that matches the importance of our work.
TikTok parent company ByteDance has agreed to pay $92 million to settle a class-action lawsuit in the US after more than a year of litigation, according to documents filed in the US District Court in Illinois on Thursday.
The federal lawsuit alleged that TikTok failed to obtain US users’ consent prior to collecting data from them, violating Illinois biometric privacy law. Illinois is the only US state to have a law allowing people to seek monetary damages for unauthorised data collection.
Last February, Facebook agreed to a $550 million settlement under the same Illinois biometric privacy law. Privacy advocates have hailed the legislation as the US’s strongest form of protection against the improper use of biometric data.
The lawsuit claimed that TikTok gained access to user data using a “complex system of artificial intelligence” to recognise facial features in videos uploaded to the platform, as well as to recommend stickers and filters. The suit also alleged that algorithms were used to identify users’ age, gender and ethnicity, and that collected information was sent to China and shared with third parties without consent.
“While we disagree with the assertions, rather than go through lengthy litigation, we’d like to focus our efforts on building a safe and joyful experience for the TikTok community,” a spokesperson for TikTok said on Thursday.
The proposed settlement still requires court approval. If accepted, it would compel TikTok to compensate its users, take further measures to protect user data and launch a new “privacy compliance” training programme.
[ymal]
Separately, in Washington, the Federal Trade Commission and Department of Justice are investigating allegations that TikTok failed to abide by a 2019 agreement intended to protect the privacy of minors.
