Understand Your Rights. Solve Your Legal Problems
French dairy giant Lactalis recently reported that baby milk produced at its Craon factory could have been contaminated with salmonella for more than a decade.
Last week the company said in a statement that Salmonella Agona was found in one of the baby milk drying towers at the north-western French plant. The same strain was also found there in 2005, leaving scope for over a decades worth of contamination.
According to Les Echos, Lactalis CEO Emmanueal Besnier said: "It can not be ruled out that babies have consumed contaminated milk during this period.”
The main tower in which the contamination was found will now be shut down but further penalties are yet to be decided.
Alistair Mackenzie, product liability expert and barrister at leading civil and commercial chambers 2 Temple Gardens, had this to say: “Given the number of recent food contamination scares, for the authorities to finally hold a company properly to account is long overdue. The steps which regulators should be taking to prevent scandals on this scale, and over such lengthy periods of time, remains an open question - but it is clear something needs to change.
“Companies which sell food products are required to make sure their food is safe and take action immediately if they suspect that their produce is unsafe, not only by alerting the authorities but also by recalling the product instantly. The fact that this problem has been persisting for a decade points to a real breakdown of those legal obligations, and raises questions as to whether Lactalis was nearly quick enough in responding to safety concerns.
“The French government has warned Lactalis that it should expect penalties over the scandal. Other businesses in the food industry will be keeping a close eye to see how far the regulators will go in sending a message that such obligations should be taken seriously.”
Bringing Lawyer Monthly expert barrister knowledge every month with our #WednesdayWisdom, here Scott Haley, Family Practice Manager at One Pump Court, discusses the meaning and history behind ‘taking silk’.
The award of Queen's Counsel is known informally as “taking silk”, which is why QC’s are often colloquially known as ‘silks’.
An example of meritocracy at the Bar, lawyers – almost always barristers – are awarded this on the basis of merit rather than a particular level of experience, however, they do tend to have 15 years experience or more.
Queen's Counsel have traditionally been selected from barristers, rather than from lawyers in general, because they were counsel appointed to conduct court work on behalf of the monarchy. Once granted, members have the privilege of sitting within the Bar of court.
Generally considered an expert in their area of law, silks are of a higher status than others – essentially, they are the bee’s knees of the legal world.
The first ever QC was appointed way back in 1594 by Queen Elizabeth I. His name was Francis Bacon, and he was the man many believe to be responsible for several of the plays attributed to the great William Shakespeare.
At that time, the Queen’s Counsel (or King’s Counsel during the reign of a male monarch) slowly replaced the Medieval order known as the Serjeants, and eventually became the legal advisers to the monarch and their government. Almost unbelievably, the first female QCs were not named at the English Bar until 355 years later in 1949.
But where does the term “silk” come from, and why do we refer to QCs as having “taken silk”? Essentially, it’s all to do with their court dress.
When in court, a QC will typically wear a black coat and waistcoat or a simple long-sleeved waistcoat in the style of 18th century court dress. The gown is always, in theory, made of silk – and this is the rather unimaginative reason behind the term.
Following an uproar on gender pay gaps in the BBC at the end of last year, former BBC China editor Carrie Grace said she was “very angry” about the treatment and unfairness towards female staff in the company. Unfortunately, this is a situation mirrored far and wide, in both small and large companies. One of few countermeasures is the gender pay gap reporting scheme, which so far has seemed effective in shedding light on some of the companies of which females are affected.
This week Lawyer Monthly set out to find out Your Thoughts on the gender pay gap, posing the following questions:
What are your thoughts on the pay gap reporting scheme? Where will we see progress? What do you want for equality? Where do you want to see change? What does the law currently say about gender discrimination and reporting pay gaps?
Here’s what the experts had to say.
Ruth Kennedy, employment barrister, 2 Temple Gardens:
The disparity between what women at the BBC feel and the results of PwC's recent report illustrates the difficulty in assessing what true 'equality' is.
The report states that ‘too much weight has been placed on the prominence and profile of certain individuals’. However, those very individuals form the face of the BBC.
When public facing organisations appear to value male employees more than their female counterparts, this will inevitably result in public outcry. In the end, how much female and male staff are paid individually matters.
Esther Langdon, employment lawyer, Vedder Price:
Pay gap reporting requirements are a good thing, but it has to be recognised that it is fairly simplistic and (a) only says so much about the true picture in any organisation because the methodology required by statute can skew results, and (b) is only one consideration/tool amongst many on considering gender.
Gender equality depends on a lot more than just reporting pay gap such as, discrimination, flexible working arrangements, unconscious bias training, incentivisation of executives to achieve gender mix, management training from early on, maternity mentoring and coaching etc etc.
The requirement to publish publically certainly forces bigger companies to think about gender pay inequality and to include as part of business planning and take issue more seriously. For example, some companies have modelling systems built into the pay review systems so managers and those making decisions can see what effect payrises will have on companies overall pay gap.
I believe shared parental leave take up shows that the approach was flawed - parenthood isn’t something that in reality can be done in week “blocks” and I believe issues like those in my second bullet point (above) are more important in achieving gender equality.
Employees should understand why gender equality is good for the business (See Treasury’s Women in Finance report).
Jo Sellick, Managing Director, Sellick Partnership Limited:
The latest outrage surrounding the gender pay gap for BBC workers has brought a common and very serious topic back into the headlines, and this time it is not only the BBC under scrutiny. There is undeniably still clear wage discrimination within the majority of business sectors here in the UK and across the world, and we need to do more in order to close the gap once and for all.
In my opinion, one of the most important contributing factors to the gender wage gap is the ‘gender leadership gap’ – women’s exclusion from the top levels of leadership in all sectors of the workforce. Underrepresentation of women in leadership positions is important because it significantly contributes to the gender pay gap. The highest levels of management and leadership are usually well-paid, and women seldom make it into those positions. As a result, they are also excluded from achieving a higher income and greater financial stability. Instead women should be being encouraged, and be given the same opportunities as men to progress into leadership positions. I would therefore advise women looking to progress into leadership roles to find a mentor – somebody who is more experienced and can offer advice and support – in order to climb the leadership ladder.
Not only would this help to fill the growing skills gap here in the UK, but it would increase the number of strong female role models across the business community. I believe strong female role models and mentorships are key to helping reduce the gender gap across all industries and sectors, and more needs to be done to help promote and encourage women hoping to progress into senior leadership roles.
In general, I am optimistic that we are moving in the right direction in some areas, however the gender pay gap is a frustrating symptom of many underlying issues. It is therefore vital that any plan to fight gender equality issues considers solutions to the gender leadership gap and the influence of strong female role models. Promoting female role models and the concept of mentorship to help navigate the way for future female leaders are just two solutions, but they will go a long way to closing the gap.
Beverley Sunderland, Managing Director, Crossland Employment Solicitors:
The pay gap reporting rule is a start, but it is not a quick fix situation, it will take time. Iceland has been reporting the gender pay gap since 2006 and although they have seen a reduction in the gap by 10%, in 2016 they were still reporting a mean pay gap of 20% (14% when based on regular earnings without overtime). As a result, they have just introduced legislation to force companies to pay men and women the same for doing the same job.
The fact that someone senior has to put their name to the gender pay gap figures, publicly, will give it the much needed attention that it deserves. In companies employing 250 or more, it is unlikely that anyone has really studied the figures. The difference between what men and women are paid are such decisions that are not made collectively but at management level, and although HR normally have visibility, and are often raising concerns, their voices do not always carry a great distance. Knowing that average figures have to be reported, it may make managers and directors think carefully about ensuring equality.
What do I want for equality? That it becomes natural for men and women to be paid the same for doing the same job, rather than something forced upon business.
I want to see changes made at the start of a child’s education, so that they understand that women are not just nurses and secretaries and there is no such thing as a ‘male dominated profession’. This will help to change the mindset at an early age.
Gender pay gap reporting reports an average across an organisation, it does not look at the pay of individuals. However, if a company has a large gender pay gap then there is no doubt that this will be used by those women who believe they have been discriminated against in the workplace – for instance in relation to promotion. They will point to the gender pay gap figures and suggest institutional sexism.
Emma Bartlett, Partner, Charles Russell Speechlys:
The “gender pay gap” is essentially about equality of opportunity rather than pay. The initiative probably should have been called something else, because it is incorrectly considered to be synonymous with equal pay. The reasons for the GPG are various; you have to look at the data be reference to different factors to identify the possible causes. Only once you’ve an idea of the factors that influence the GPG , can employers take steps to address it.
Not all organisations will be sufficiently motivated to close the GPG, but larger organisations that want to be employers of choice will do. Quick wins could be achieved from objectively looking at recruitment and progression opportunities to see whether any criteria are unnecessary and having an indirect effect on women progressing and introducing mentoring or sponsorship for example. Introducing training schemes that will give relevant experience to allow women to progress or return to work after career breaks will have a positive impact. Removing limitations on agile working and actively offering more flexible working opportunities will have a huge impact on retaining women or encouraging women into more senior roles, where typically the pay gap is higher.
Progress will take a few years though. Progress could be measured by a reduction in the GPG but also in an increase in women applying to work for an organisation that appears to offer, genuinely, equal opportunity.
More open thinking will nurture a culture of equality. For example, in sectors which have the biggest GPG’s, employers should ask whether they really need sector specific experience when recruiting and if so, how much? Having a requirement for significant experience can artificially reduce the pool of candidates and for women who have had a career break, or who have had difficulty getting initial experience, will find it much harder to meet this criteria.
Employers should challenge their makeup and working patterns. There needs to be a societal and cultural shift to make key employer initiatives work.
Indirect gender discrimination is possibly inherent in the causes of GPG. It’s not intentional, but an indirect impact of traditional ways of working will mean that fewer women can comply (because women traditionally have taken on caring roles – although I recognise this is changing).
We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!
One of the major provisions of the US Tax Reform forced large US companies like Apple and Google to pay a sizable tax on profits they held outside the US in their foreign subsidiaries (called CFC –controlled foreign corporations). Under the reform, all profits of these CFCs that accumulated between 1986 through December 31, 2017 are treated as income to their US parent company (Apple and Google, for example) and taxed at 15.5% for profits held in cash form, and 8% for profits held in non-cash form.
This new law has major unintended consequences for American individual expats (US citizens or Green Card holders) living outside the US who own or have interests in companies incorporated outside the US. Why? The US reform treats such individuals exactly the same way as it treats large US corporations. Therefore, if an American expat owns at least 10% of a foreign corporation, and over 50% of that foreign corporation is owned by Americans, that corporation is a CFC for purposes of the tax. Accordingly, the individual US expat will pay the same tax as Apple on accumulated profits.
Monte Silver, Senior Council at Eitan Mehulal Sadot, commented: “Many American expats conduct their business through companies in their countries of residence. For expats, working through a CFC has several income tax and US social security-related benefits. While Trump and the US congress were focusing on multinational corporations, they simply did not notice that US expats were subject to the same penalty. This provision does not only impact the super wealthy. No matter what the size of the CFC, its accumulated profits are subject to a huge 15% tax.
“There are also serious questions as to whether this tax, payable to the US starting 31 December 2017, will be entitled to tax credit in the expat's country of residence. Or alternatively, whether the expat will be able to avoid the US tax by having the CFC distribute a post-2017 dividend, paying personal income tax on the distribution in the country of residence, and then seeking a foreign tax credit against this new US tax. This opens the very real possibility that despite tax treaties, expats will effectively pay tax twice on this money – to the US now, and later to the country of residence when the CFC distributes dividends.”
Monte Silver, an experienced US tax lawyer working at the Israeli law firm Eitan Mehulal Sadot, first uncovered this issue. Monte, who previously worked at the I.R.S. and the US Tax Court, is working on finding solutions to the problem, and advocating to change this unintended consequence.
(Source: Eitan Mehulal Sadot)
A review ordered by the government concluded that Muslim couples who marry in Sharia ceremonies should be required to have a civil marriage, as well as an Islamic ceremony in order to give women protection under the law
The recent independent review of sharia councils stated that undergoing a civil marriage as well as a religious ceremony would help protect women under statutory law and “lessen discriminatory practices.”
The review, conducted in 2016 under Theresa May as Home Secretary, was led by Professor Mona Siddiqui in an investigation surrounding the misuse of sharia law in the UK.
Hazel Wright, Partner in the Family department at Hunters Solicitors and accredited mediator, comments for Lawyer monthly: "There is a significant lack of understanding amongst the Muslim community over the role of Sharia Councils. Their "rulings" have no legal force in England and Wales nor any legal binding authority under civil law. Yet some overseas countries will only recognise an Islamic divorce, which these Councils deal with. Much more work is needed to address this.
"Civil law governs the requirements for a marriage to be valid and binding, likewise a divorce and a financial settlement. Many Muslim couples do not register their religious marriage, so that on breakdown of the marriage, or the death of one spouse, there is no possibility of obtaining a civil divorce or exercising their rights as a spouse, because they are simply not married, either in life or on death, in the eye of the law.
"The independent review into the application of Sharia Law in England and Wales has three key recommendations. The first is legislative change, to ensure that Islamic marriage is binding and valid. The second is awareness campaigning, to address the misunderstanding over the parallel systems. This particularly discriminates against women, who can experience special disadvantage on relationship breakdown under Sharia Councils. And the third is for Sharia Councils to become regulated.
"Before these recommendations move forward, closer cooperation between the State (in the form of the family court judges and those in judicial roles) and the Muslim community is vital, through Sharia Councils and otherwise. These are necessary steps that must be taken to bring this parallel system in line with civil law and ensure access to justice for all without discrimination."
The Great British Bake Off may be over but the Great Legal Bake is just around the corner. This 12-16th February, hundreds of law firms, chambers, courts and legal advice centres will bake to raise funds for access to justice.
Almost 250 organisations are already signed up to bake for justice across the UK. All of the proceeds from these bakes go to support access to justice for the most vulnerable.
The funds raised support a network of seven Legal Support Trusts across England, Wales and Scotland working with the Access to Justice Foundation to support free legal advice agencies.
The money raised by the Legal Support Trusts really does make a huge difference in people’s lives.
Era’s Story
As a child I was locked in by my parents. They kicked and beat me. I was deprived of an education, of friends, of a childhood.
When I was 21 I was sent to help my sister care for her children. I took them to a local park where I met a young man called Lukas. He was kind and affectionate and promised to look after me. He said we should go to the UK where I would be safe, and I trusted him.
When we arrived in the UK Lukas told me I had to work as a prostitute. When I refused he beat me and threatened to kill my sister’s children. Men visited me for sex every day. One day they forgot to lock the door. I ran.
I told the police but they never caught Lukas. The government said I was a victim of trafficking but after making this decision they stopped supporting me. I was left penniless and homeless. I went to the council for help but they sent me away.
Then I went to see ATLEU.
At ATLEU, the lawyer listened to my story. I told her how I was too scared to go out alone as I lived in fear of Lukas finding me. I told her about the panic attacks, blackouts and nightmares.
She presented my case to the council and used the law to make them house me. With a safe place to live I have been able to start to recover from my experiences. Now I have a job and I am planning to finally get the education I never had.
Visit The Great Legal Bake and Access to Justice Foundation for more information.
(Source: London Legal Support Trust)
President Trump said his proposed new legislation will fix immigration laws "to finally close the deadly loopholes that have allowed MS-13, and other criminals, to break into our country." He also said that while the U.S. is a compassionate nation, "my greatest compassion, and my constant concern is for America's children, America's struggling workers, and America's forgotten communities."
The world of law isn’t what it once was, from technology, employment and regulation, the dynamic has shifted significantly over the past decade. below Donna Sewell, CEO at LegalEdge, delves into said change, touching on some of the evolution she has witnessed, and the ever-changing attitudes of the people involved in this intricate sector.
Back in the early 2000s, as a head of legal for a global organisation, when I needed additional resource for my team it was a huge challenge to find any workable solutions. Cost effective ad hoc legal support didn’t exist and fighting internally for additional headcount was impossible.
In 2009, as the economy tanked and the financial crisis hit, legal teams in most companies also suffered – budgets were slashed and headcount was cut, but the work of the teams did not reduce – if anything, it increased. Teaming up with my business partner, Helen Goldberg, we saw the demand for a new model of flexible, business focussed lawyers who knew how to work inside companies, to deliver in-house legal services as a virtual team.
Carving out our space in the market, we became part of a movement of lawyers on a mission to innovate legal services, alongside other early adopters like Axiom and Lawyers on Demand.
The evolution of new law
We initially set up to support in-house legal teams. However, we quickly found a real need for flexible in-house expertise in fast-growth SMEs that had no legal in-house. They really needed someone to manage their legal requirements and budget – which is not a service offered by traditional law firms.
Post-recession, as businesses recovered, the power-play remained the same; companies had no appetite to allow law firms to continue to control the budgets and dictate fees. The rise in power of the in-house lawyer had started. This shift ran in parallel to the development of tech innovations.
Firstly, the development of cloud technologies gave companies and lawyers access to new innovative platforms, driving client visibility and control. This also allowed for easier virtual working, lower costs and removed the need for cumbersome IT.
The more recent rise of legaltech was the shake up our slow-to-change sector needed. Some law firms have jumped on the band wagon and responded by creating new, more seemingly flexible models. It’s also led to more investment in technology; Mishcon de Reya’s MDR Lab for tech start-ups in legal is a great example of a traditional firm adapting to the new market.
People changes
A change in people’s work-life expectations has also influenced how new law is evolving. The long hours, lack of career progression and job dissatisfaction have made people look at alternative ways of working. Some of the new law models, like ours, have come about during the rise of the gig economy, which means that lawyers can work flexibly, at a high level, and earn a good salary without compromising on other things, whether it’s family, travel, study or their personal life. For lawyers the gig economy has only been a good thing!
The number of CVs we receive each month shows this and we expect to see more creativity around the way lawyers work and build their careers in the future.
The future of new law
We’ve yet to scratch the surface when it comes to legaltech. Innovative businesses like Seedlegals are agitating the market whilst others are levelling the playing field in terms of access for the end-user, via template-led DIY legal offerings.
We see the rise of AI in legal as the next big disruptor, set to transform all types of contracts and contract processes, as well as due diligence and discovery in litigation, taking away much of the more tedious work involved. In my view, new law’s ready for the next wave of disruption.
The world of new law has changed in LegalEdge’s comparatively short lifetime. As business owners, we’re always looking ahead to ensure we stay nimble within this market; agility is a perk of being an SME. The nature of our client community also means we have access to some amazing innovative thinking and tech, staying on top of platforms like G suite and fintech like Xero, as well as newer tech, such as blockchain – the opportunities it presents for our clients as well as our own business. New law isn’t standing still, and neither are we.
As part of our law school & careers features, for paralegals, newly graduates, and those simply hoping to jump into an exciting world of law, here Andrea Hall, Founder and Principle of US based The Hall Law Office, LLC, talks to Lawyer Monthly about the first steps in building your own firm and attracting your first few clients.
This is probably more of a question for someone who is out on their own as opposed to someone who is working at a law firm. With that being said I think some of the things I will mention are applicable to both.
When you are self-employed you eat what you kill. The more you kill of course the more you get to eat. I told that to someone one day who was not self-employed, and they still remember it and remind me quite often of my comment about how much money I earn.
Here are the top five things you should remember when thinking about getting your first few clients.
You always have to make a good first impression. If you are at the grocery store and you meet someone there is only one chance to make a good first impression. The minute people find out you are a lawyer they of course want to pick your brain. 9 times out of 10 people want your card as they never know when they just might need a good lawyer. Make sure that your business card show cases who you are and how you want to present yourself to the world.
For me this was the most import thing I could do. Now I am not saying that you need to spend all your time networking because this can become a second job for sure. Join the local Chamber or a networking group or meet-up group. Friends and family are always the best source of clients. They know you best and of course will have instant credibility with people they supply your name to. For me I took as many local criminal defense attorneys out to lunch to show them who I was, pick their brain for information and tell them to send me the clients who they didn’t want or who couldn’t afford their services. Which leads me into my next point.
I know this might sound counter intuitive as you are wanting to eat and make a living yet in order to build your practice and get your name out there you sometimes have to do things for a little less. For me I was able to build my reputation on the great work I did for my clients and over time I was then able to raise my rates to what other people were charging with no questions asked. Now my experience came from opening my practice right out of law school. If you are coming for another firm where you already have a reputation that precedes you the clients will come just be patient. It takes time for the community to know who you, recognize your talent and send you referrals.
I know that you are on a budget yet I firmly believe that what you give out you get back. Take at least 1 -2 clients a year that you work their case for free. Know that the client is someone who truly needs your expertise and is in a position financially that if you don’t help they won’t have someone who will fight the justice system for them. It will make your heart feel good and of course this client will be eternally grateful.
No matter how hard you strive to be successful if you don’t take time to create balance and happiness in your own life you will burn out. Make sure you are eating healthy, exercising, creating balance with your personal and professional life and most importantly don’t forget to have FUN! The best part about being your own boss and creating your own schedule and eating what you kill is having the life you always wanted so make sure you have FUN!
Written by David Gardner, partner, and Grace Roddie, solicitor, at law firm TLT
The second EU Payment Services Directive (PSD2) took effect in the UK on 13 January 2018, laying down the framework for more transparent, competitive and open banking across the EU. The Directive introduces significant changes about how non-bank third party providers (TPPs) can access information from customers’ bank accounts and carry out transactions on consumers' behalf. It complements the work of the Competition and Markets Authority (CMA) in the UK, which has introduced Open Banking to accelerate interchange and communication between TPPs and banks so that this becomes the new norm.
The revolution has begun
These reforms could radically transform the financial sector, and banking in particular. Open Banking could prove to be the catalyst for a wave of FinTech start-ups and Challenger Banks to disrupt and replace traditional retail banks. Thanks to such a vast amount of data being available for the first time, Open Banking will generate new digital banking services tailored to individual customers’ preferences and requirements. In the highly competitive environment that will emerge, only the most flexible and innovative providers will thrive as customers come to expect new and improved services – at least in theory.
In reality, there are numerous legal, commercial and technical challenges to overcome before this vision can be realised. But Open Banking does have the potential to produce a genuine change of paradigm in the banking sector. The revolution has begun.
Details and take-up
The Open Banking and PSD2 reforms are founded upon precise legal frameworks, technical standards and changes to policy. If customers consent, the UK’s nine largest current account providers are now obliged to provide access to customer account data through an open Application Programming Interface (API) standard. Thanks to PSD2, newly regulated categories of TPPs, known as Account Information Service Providers (AISPs) and Payment Information Service Providers (PISPs), will also be able to access customers’ bank accounts. This will allow customers to share their account information with AISPs and enable PISPs to make payments on their behalf.
Whilst PISPs and AISPs will not need to hold banking licences, they will need to meet regulatory requirements and register with the Financial Conduct Authority – the UK’s main financial regulator. Expect future PISPs to try to replicate models such as ApplePay, where Apple is not a bank but a PISP involved in the front-end of the payment process, thus short-circuiting traditional bank-to-customer relationships. In the PISP model, your money will still be paid out of your bank account, but the transaction will merely be processed by the bank upon the request of the PISP.
In the months leading to 13 January 2018 and the implementation of PSD2, the financial sector witnessed a burst of activity so that prospective PISPs and AISPs could hit the ground running and communicate with banks using open APIs. Despite the buzz from finance and tech entrepreneurs, lawyers and programmers, PSD2 has not yet created the new genesis some in the payments sector were looking for. The primary reason for this is that these reforms have not yet captivated and gained the trust of customers, which is a crucial factor in driving the adoption of new technologies and thus new revenue streams. At present, customers are largely unaware of the changes or remain cautious about experimenting with new providers and banking services. Concerns about data sharing and high-profile data breaches also feed into customers' misgivings.
Eyes open
Whilst it’s still early days, PSD2 and Open Banking present a great opportunity for established actors and challengers alike to drive take-up of new banking and payment services and revolutionise the market. The technical and regulatory challenges are considerable and the market is currently far from mature – in particular, the potential benefits arising from Open Banking are only just beginning to be understood by customers. However, this means there is a fantastic opportunity for an innovative service provider to be the first to capture the hearts and minds of customers and establish a dominant market position.
David Gardner
Partner
+44 (0)333 006 0358
david.gardner@TLTsolicitors.com
David is an authority on IT, outsourcing and technology-driven procurement, with a particular focus on clients in financial services, the public sector and the technology sector. David regularly acts as lead advisor for customer and suppliers to deliver complex and strategic technology projects, collaborations and commercial contracts of all shapes and sizes.
Technology & IP at TLT LLP
TLT LLP is a leading national law firm with a strong focus on advising on Technology and Commercial matters in the Financial Services sector, with particular specialisms relating to Payment Services, FinTech/RegTech, Data Protection and Financial Services Regulation.
