Understand Your Rights. Solve Your Legal Problems
Death, usually accompanied with grief, is not set in stone; death can present itself unexpectedly and grief is never the same for two people. Nevertheless, the pair can have dire effects on one’s life, allowing them to fail in continuing with their daily routine.
It is therefore surprising to note that there are no official rules or regulations in place for when you are in the unfortunate position of taking time off due to a loved one’s death. Advisory, Conciliation and Arbitration Service (ACAS) provides information on what action employers should take in regards to bereavement leave. They stated out the laws in places which apply:
In general, ACAS also states how an employee may be entitled to special or compassionate leave under their contract of employment as the employer had a duty to care for employees and should consider the effect of bereavement.
The overall lack of guidance and legislation regarding bereavement and work has led to cases of people feeling stressed and under pressure to return to work when they are not ready, or capable to. It also allows employers to threaten to terminate their contractual agreement with their employee; some employers go above and beyond to see to their employee’s needs, however, the lack of law in place makes it easy for them not to.
Therefore, this months’ Lawyer Monthly asks experts about if there should be tighter regulations stated by the government to do with bereavement leave and how realistic these rules would be, if they were implemented.
Paul Kelly, Solicitor at Blacks Solicitors
In September 2016, Conservative MP for Colchester, Will Quince, introduced the Parental Bereavement Leave (Statutory Entitlement) Bill 2016/2017 to the House of Commons for its first reading.
Mr Quince is seeking to amend the Employment Rights Act 1996 to give parents who have suffered the death of a child a statutory right to take two weeks’ paid leave. Sadly, Mr Quince and his wife lost their own son in childbirth. Now he wants to see parents who suffer a similar loss given sufficient time to grieve and make the necessary arrangements to say goodbye.
At present, there is no statutory right for an employee to take paid or unpaid time off work following bereavement. There is an existing statutory right to take a very short period of unpaid leave to deal with emergencies concerning dependents. But that right is inadequate to deal with bereavement as it is a right only to take such reasonable time off as is necessary to put measures in place - such as organising a funeral. Furthermore, it is unlikely that the leave would last for more than a few days. So, in the case of bereavement, it would not allow sufficient time to grieve.
Whilst a further statutory right to paid time off is unlikely to be popular with employers, many already offer do some form of bereavement or compassionate leave, recognising the benefit such leave has on an employee’s wellbeing (and in turn, productivity). However, given that there is no statutory obligation on employers to allow such leave, the length of leave and whether or not it is paid is very much in their discretion.
Mr Quince’s Bill is a Private Member’s Bill brought under the Ten Minute Rule. A Private Member’s Bill generally has little prospect of becoming law unless it attracts Government support and can find space within a packed legislative timetable. However, some Private Member’s Bills do find their way onto the statute books. Mr Quince’s Bill was listed for a second reading on 28 October 2016 and again on 18 November, but was not debated due to lack of time. At present, there is no indication when it will receive a second reading, and with Brexit dominating the news at the moment, we could be waiting some time.
In the age of family-friendly legislation and a more flexible style of working, spectators are watching with interest the progress of this Bill through the House of Commons and the Lords.
Emma O’Leary, Employment Law Consultant for The ELAS Group
The Employment Rights Act 1996 does provide for an employee to have ‘reasonable’ (unpaid) time off to deal with an emergency, such as a bereavement involving a dependent. Of course with much of employment law, what is ‘reasonable’ depends on the circumstances and, given that we all deal with grief in varying ways, there can be no definitive guide as to what is reasonable.
For that reason, it would be difficult to introduce legislation to deal with bereavement specifically other than perhaps to compel employers to allow a set period of paid or unpaid time off to deal with the situation. But then other issues arise, for example, would this be limited to relatives only? What about very close friends who might impact more on an employee than an estranged parent? Would there be statutory minimum pay as with statutory sick (SSP) or maternity pay (SMP) and could the employer reclaim any portion of this, as with SMP?
In the absence of any definition as to reasonable time off to deal with bereavement or forthcoming legislation, grieving employees have to rely on the goodwill and policy of their employer. Many employers will have a policy which might allow for a period of leave e.g. 3 paid days. If the deceased was a dependent then not only will the employee have to deal with their grief, they will probably have to organise the funeral so would need more time off. How this is handled is at the employers’ discretion to some extent – although always bearing in mind the statutory right to time off for emergencies. Some employees may simply request holidays rather than unpaid leave. Some may seek medical assistance or a Statement of Fitness for Work declaring them unfit for a period due to bereavement or associated mental health conditions e.g. anxiety, depression or PTSD. Employers must then also consider the implications of the Equality Act and avoid treating the employee less favourably due to those conditions, in the event that they amount to a disability.
Above all, the employer should be supportive. As we said each person deals with loss differently and whilst some may feel ready to return to work quickly, others may really struggle and their absence could become long term. There should also be some consistency to ensure employees are treated fairly and equally, which is why a bereavement policy is advisable. Lack of support and reasonable policy is more likely to result in the employee taking long term sickness absence.
Will Clayton, Partner for Knights Professional Services
The argument for and against bereavement leave is an emotive one. However, at least in my own professional experience bereavement leave has never proved to be a contentious issue - I have not had to deal with any disputes between employers or employees surrounding bereavement leave during my twenty years’ experience in employment law.
Many employers have specific policies which outline the criteria for taking time off in these circumstances that work perfectly well and so I don’t see any pressing need for the government to implement a statutory bereavement leave scheme.
Bereavement is of course incredibly personal – there is no one size fits all approach that will work for everybody.
In addition to the statutory entitlements, employees can of course seek to take annual leave or, if unable to work due to the distress of a bereavement, sick leave. In practice, most employers exercise their discretion reasonably to grant additional compassionate or bereavement leave to workers when it is needed.
Introducing formal bereavement leave could cause more issues than it would resolve and only create a two tier system that leads to unfairness. Where do you draw the line between who should be entitled to a new form of statutory bereavement leave and who will not? Will this only lead to people who are not within the definition being denied the benefit of an employer’s discretion that they may otherwise have if the legislation is not put in place?
Regardless of whether new laws are introduced or not, employers need to carefully consider issues around the interplay between bereavement, the need to take time off work and religious observance. This is an area where employers could unwittingly discriminate against employees of differing religions who suffer bereavements.
For example, I understand that within the Jewish religion, burials should takes place as soon as possible following death, and can be followed by a formal period seven day period of mourning. Employers need to have open discussions with employees of different religions about such issues, and stay on the correct side of our discrimination laws.
Simon Allison, Partner & Head of Employment Law at Blackadders
An online twitter poll last week asked employers whether the UK should create a new specific form of statutory bereavement leave or instead leave such matters to an employer’s own discretion (as is currently the case). The results were surprising.
As perhaps expected, many employers were of the view that the current statutory right to unpaid emergency leave was sufficient. Generally employers were concerned as to how this proposed new leave would operate in practice. Aside from the obvious concerns as to who would meet the cost of such an entitlement, many employers noted that the required length of absence would vary from employee to employee.
Interest in this poll came from as far afield as Australia where there is already scheme of statutory compassionate leave of two days per household for death, injury or serious illness to immediate family or a member of the household.
Ultimately however 56% of employers were of the view that the UK should create a formal entitlement for statutory bereavement leave.
Perhaps employers believe that such a scheme would remove the sometimes difficult decisions which require to be made regarding grieving employees.
Or maybe employers are keen to create certainty as to employees’ entitlements in these circumstances.
In either case, such a scheme would require very careful thought from the draftsmen, particularly as to the extent to which family members’ deaths would trigger this entitlement.
Claire Knowles, Employment Lawyer and Partner at Acuity Legal.
If bereavement leave was to be introduced, a number of factors need to be considered. I would propose a minimal entitlement for all, whilst larger organisations should be encouraged to be more flexible and accommodating where they can.
This will be difficult to balance as some employees may have high expectations when it comes to how much leave they might be entitled to, so all policies need to be made very clear to managers and employees alike.
Smaller businesses need to be able to function properly and the impact of someone taking lengthy time off can cause considerable disruption, particularly if it’s not clear when they will be returning to work.
There should therefore be a minimum statutory bereavement leave policy that all companies have to comply with, and in my opinion that should be at least the same as statutory sick pay (if not enhanced sick pay if this is offered in an organisation).
Employers who can afford to pay for bereavement leave should do so, particularly those that already provide enhanced sick leave pay for staff. Consistency is very important when it comes to leave policies, but as a minimum there should be some form of compensation available.
Everyone’s circumstances are different so a set policy that applies to all staff can be quite restrictive. While official legislation on this matter is important, it will always require an element of humanity due to the sensitive and individual nature of bereavement.
I’ve managed a few employment law cases relating to bereavement leave. In one case where a female employee of a large company lost her husband, her manager didn’t know how to deal with the situation and was unable to advise her on how much leave and pay she was entitled to. In the end, she had to resort to getting a sick note from her doctor and the whole process was incredibly stressful for her.
The issue of line managers not being properly trained on leave policies relating to bereavement is quite common. Making the policy really clear at all levels of the business is therefore essential.
“The punishment is a sort of medicine” as Aristotle used to say. For a while, the tough hand of Lady Justice being directed by the will of eliminating a plaque of crime, which affected and spread among societies, created the legal tools for bringing the unfaithful to a rule of criminal law, to her.
Based upon the historical sources and the publications of a remarkable extradition, experts first archived a request (official notification) for a criminal to be brought to justice; it was a formal letter authorised by Ramses II in 1280 BC to Hittite- Hattusli III.[1]
The above-mentioned document has been written using a graphic language (hieroglyphics) and currently is being kept in the Amon Temple in Karnak. The request was a part of the peace related treaty issued after the Hittite failure in invading the invincible Ramses II.
Together with the societies’ cultural, economic and general world view, related evolution, including mass migration, not only shows us that the associated crime was unavoidable, but also the ways of the fleeting justice system; there is a notable progression: crime has become cross border.
From this, it then appeared obvious that ruling a separate and specialised law became essential. This shaped the Classic Extradition Procedure in Europe and Aleksandra Kowalik will reveal and focus on the mutual relationship between The United Kingdom and Poland European Arrest Warrant was affected and the relation today.
A Brief View of The Classic Extradition Procedure in Europe And Its Strongest Disadvantages
The fundamental basis of the international cooperation aimed on bringing the accused or convicted person to justice; The European Extradition Convention signed in Paris on 13th December 1957 with its two attachments (the Additional Protocols ruled in Strasbourg on 15th October 1975 and 17th March 1978) were considered.
The main establishments and purposes has been clearly drafted in the article 1 which states:
The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.
Ruling the Convention does not mean there has been a legislative hole or inactivity. The United Kingdom is fully entitled to take a pride in the fugitives’ exchange based upon and pursuant to the drafted arrangements (dated on 1174) between King Henry II of England and King William of Scotland. The similar arrangements have been issued between Edward I and French King Philip in 1303.
The crown establishment of a classic extradition was the citizenship related bar as the requested stated that it could use its refusal right to extradite its own citizen (article six of The European Extradition Convention).
The further basic assumption of a classic extradition system drafted in the Convention (1957) was a recognition of accusation or a conviction for a political offence as a potential bar for extradition.
None of above has been established by the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member Stat- neither in the absolute bars to extradition (article four) nor in the compulsory bars mentioned in article five.
Various range of arbitrary and underspecified grounds for refusals requests, including the diplomatic authorities’ involvement which the requests and all the relevant correspondence, have been passed through and have had an impact for a pace of requests consideration, even though the Convention did not establish a passage of time as a bar for extradition.
Nevertheless, the lack of passage of time does not change the fact that both extradition and EAW’s proceedings aim to bring one, as soon as it is possible, to a specific justice as one must bear in mind the expiration time of chased offences or crimes.
To simplify and speed up the extradition proceedings within the Members States, the European Council in Tampere was established in 1999. The Council’s intentions were to rule the new EAW proceedings pursuant to a principle of mutual respect and recognition.
I will allow to focus myself on the mutual relationship between The United Kingdom and Poland European Arrest Warrant, as Poland has been taking the first place in the first row in requesting for the justice’s fugitives.
The crucial moment of the cooperation between those two countries has taken its place in 1993 when The European Extradition Convention and European Council Order (section 4.1) Extradition Act 1989 Poland became a signatory of a Treaty with The United Kingdom.
The current cooperation pursuant to the Council Framework Decision 13th June 2002, following my observations as a practitioner in both jurisdictions, drew my attention to the necessity for a mutual cooperation, not only between the Member States’ authorities, but inter alia, the lawyers from both countries as the ways of defending the requested persons are completely different; this will see the result meeting at one point, namely the successful defence.
In accordance to my experience, the designated Westminster MC Judge or the CPS representing the requesting state often ask for the further information, especially a related passage of time, but without knowing a Polish criminal procedure and general responses, it is difficult to find the answers for the asked matters.
It is not enough for the requesting state (namely Poland) to provide the British authorities with unspecified information instead of a detailed list of the undertaken domestic warrant activities. Unfortunately, regardless of the fugitive position, the delay itself has often been caused not by fleeting or hiding by the RP but by a simple inactivity of the Polish Judicial Authorities for many years.
The similar issues refer to “in absentia” proceedings and doubts with the summons for the trial as Polish criminal system allows for serving the summons (signed for correspondence) to any adult person staying at the address regardless his bonds/ relationship or other kind of connections with the summoned person, regardless of the possibility that the judicial correspondence will never have been passed to the addressee.
Cooperation is especially important in relation to the non-convicted persons; as a Polish defence lawyer, there is an open way for negotiating with the Polish Judicial Authorities for issuing an “iron letter” – however the letter relates only to non-convicted (can be accused) or not accused persons, which means one cannot apply after being sentenced (even in non-abiding sentences) because the letter has only been established for the investigation stage.
The range of iron letter negotiations allows for granting bail conditions similar to those recognised by the British rule of law, resulting in EAW’ s withdrawal.
The above-mentioned cooperation would, in my opinion, enable savings to costs and significantly improve, not only the pace of the proceedings, but would limit its complexity.
Nevertheless, without arranged seminars, conferences or other types of joined trainings, it seems the mutual cooperation is impossible without a mutual awareness of the grounds of the domestic procedures.
[1] C. Nicholls QC, C. Montgomery QC, J. B. Knowles QC, A. Doobay, M. Summers: The Law of Extradition and Mutual Assistance (3rd Edition) Oxford University Press, page 4
Some cases require special attention and concentrated expertise due to their complexity, and with more than 25 years as an Attorney at Law in the field of claims management, Bernd Höke provides the expertise required to deal with most complex personal injury cases against insurance companies. He allows professional advice on site combined with networked knowledge, allowing his clients to get the best result. This month, he talks to us about how he made a name for himself in Insurance law and the developments in place.
Bernd, you have worked for a renowned insurance company for many years, you have made a name for yourself in the business. What made you switch sides?
I get that question a lot. It is difficult to understand why someone would give up a successful and prospering career for a step into the unknown; I could no longer agree with my convictions, how the increasing competition led to harder regulation and cost-saving measures like staff reduction. For many years, I have worked hard to reach the quality standard that we had, but inevitably these developments meant a loss of that quality. I could not support that and so I left.
Regarding the expertise of lawyers employed by insurance companies and those representing the victims, there were tremendous discrepancies between both, particularly in the field of cost-intensive personal injuries. The pros were always on the side of the insurance companies. My aim was, and still is, to create equality of arms on the part of the victims.
Many insurance companies expand their influence. Some perform training courses for insurance law for lawyers specialised in this field. There are co-operations with experts for medical opinions. Some experts have even subsidiaries – which has a hint of supplier industry.
At that time, I was given the unique opportunity to participate in a law firm specialized in exactly the field I was familiar with and to set it up nationwide. Back then it was located in Munich; currently we are located with 27 subsidiaries all over Germany. Our growth and success prove us right.
Is there any recent development that has had or will have big impact on the insurance law sector?
Actually, recently the Federal Ministry of Justice and Consumer Protection published a draft bill entitled: “Draft Law on Introducing an Entitlement to Survivors’ Benefits”. The pain and suffering inflicted on a survivor through the loss of a close beloved one shall be compensated. Though this is ready applied in most European countries, it represents a novelty in Germany.
Currently in Germany, those bereaved of a person killed in a car accident are solely entitled to smart money if they sustained damages to the health beyond the common grief. The mental pain inflicted by impacts on the medical physical state do not suffice to be regarded as such damage to the health. Moreover, it requires to prove some state of shock, a medically tangible mental impairment that goes beyond the common experience of bereaved in a case of death. As you can imagine, this posed a heavy burden on the bereaved. Not only did they have to cope with the loss they experienced and their grief but also with bureaucracy to pursue their claims for the impairment. This draft is a step in the right direction towards a compensation for the bereaved.
In your opinion, will this have a great impact on disputes and legal actions with insurance companies?
From my experience, insurance companies will always face disputes and legal actions – some with and some without good reason. The point is the way you handle claims as an insurance company. In most cases, it suffices to adjust asserted justified claims, but insurance companies are still companies and they have to generate profit. So, in some cases it is solely a business decision to change it. Many injured parties do not know their rights, so they do not go after them, or it is too costly to take legal actions for little amounts unadjusted.
“Health is wealth” is a phrase often heard by many, and nowhere is that more true than in a healthcare business. Maintaining optimum business health in the face of an ever changing healthcare legal landscape is a treacherous endeavour providers must retain highly experienced counsel for. When things go wrong, there can be dire consequences. We had the opportunity to speak to the Founder and President of one of South Florida’s leading healthcare law firms, about the healthcare regulatory climate and oft overlooked regulations that providers need to know.
Can you talk LM through the types of legal matters that healthcare services and medical professionals have to deal with on a regular basis?
Sure thing. They tend to be issues and problems with administrative employees, hiring a physician or midlevel provider, making an employed physician a partner and checking into the legality of a proposed business arrangement.
What kinds of disputes can arise for medical professionals, such as negligence cases for example?
Typical disputes often include problems with vendors (IT, electronic health record [EHR], etc.), problems with landlords, problems with employees (noncompetes, etc.) and patient complaints/difficulties.
What can medical professionals do in order to reduce their chances of being involved in such disputes? Are there common regulations often looked over by professionals?
First, selecting experienced counsel. Second, engaging that counsel BEFORE signing any contract. Effective regulatory awareness is nearly impossible for the non-lawyer, because the application of applicable healthcare laws and regulations is nearly always unclear, and those laws and regulations change regularly. Additionally, understanding the laws is not enough. One has to know how they’re being applied by insurers and regulators, which changes over time. Sometimes, following the law isn’t enough. Experienced counsel will ask (1) is this legal, and also (2) does this work? Compliance is nearly always a moving target; the best physicians can often hope for a quick assessment of how risky a proposal is in light of the law at the time and also the environment at the time.
Can you detail some of the healthcare professionals you are often engaged in more than others, in regards to legal matters, and why?
Usually, bigger ticket items and services draw more scrutiny, as do practices that also provide ancillary services to their patients (e.g. PT, clinical lab, diagnostic imaging).
Are there any further legal considerations to make in relation to children healthcare services? What are the commonly the consequences of missing these considerations?
A more modern frustration for physicians is caring for kids in a divorced family who face a non-urgent problem. Physicians will often ask for some proof of which parent has the legal capacity to consent to care.
Do you believe US medical legislation is due reform, and in what area do you think reform would help the healthcare service, or impact its engagements?
Yes. Focus has to be paid more on prevention, outcome and patient compliance. Physicians are routinely expected to perform miracles, but patient compliance is sometimes elusive. And since the state of diseases can be driven by patient choice, effective outcomes have to take into consideration patient “buy-ins” and incentives. Also, with so much cost allocated to emergency situations, more attention has to be brought to effective prevention. Finally, our culture has to consider the role of profit in health insurance. Government based healthcare is regarded as being less expensive and more efficient that many commercially backed insurers. At least with respect to effective preventative healthcare, what’s the most effective care payment platform? I don’t think that’s clear at the moment.
Do you find personal ethics often clashing with legal regulations? How do you overcome this and thus advise your clients in respects to this?
I don’t’ find ethics to be a barrier. I do find the following, however, affects client sensitivity to legal issue spotting: how entrepreneurial minded the physician is, and years in practice.
How do you believe your years of experience qualify you as a Thought Leader in healthcare services?
Because I’ve limited my practice to healthcare law over the past 30 plus years and because I’m fascinated by the industry and the practice of law; I observe not only the changing statutory landscape, but also how the views of regulators and insurers impact it. I see cycles, where others see isolated events. I routinely analyse legal and risk factors across specialty/provider areas. The years and engagement with clients has created a sensitivity to not only know the laws, but also understand them and then be able to assess risk in light of the laws, what I’ve seen work (and not work) and the current state of regulatory and law enforcement views. All of this enables me to function in an often inherently grey area of the law and also have a solid opinion that clients find valuable!
Is there anything else you would like to add?
Yes - there is a seeming unending stream of lawyers who practice outside the area of their core competence. It’s very frustrating and a real problem. The best lawyers I know, recognise what they know and what they don’t know. That seems to be a rare distinction. At the end of the day, the best lawyers answer one question repeatedly: What’s the best way I can help this client?
The UK Government unveiled plans to try cut down on whiplash claims. This news was released due to whiplash claims being 50% higher than a decade ago, despite the UK having some of the safest roads in Europe and a decline in number of motor accidents.
The UK government claim that millions of motorists could see their car insurance cut by about £40 a year thanks to plans to crackdown on the epidemic of whiplash claims, and so they launched a consultation on proposals which will reduce the unacceptably high number of whiplash claims and allow insurers to cut premiums. Insurers have pledged to pass on savings to drivers - worth a total of £1 billion.
The consultation paper outlines plans to scrap the right to compensation or put a cap on the amount people can claim for minor whiplash injuries. Capping compensation would see the average pay-out cut from £1,850 to a maximum amount of £425. Compensation would only be paid out if a medical report was provided as proof of injury.
Other measures include:
This months’ Your Thoughts hears from a variety of experts on the matter, to whether or not the government’s plans are realistic, how it will affect those claiming and insurance companies themselves and the general consequences of these new plans.
Michael Pace, Partner and Head of Motor Law and Personal Injury at Andrew & Co Solicitors
Another false promise by the insurance industry to reduce motor premiums if the government either bans whiplash claims or raises the small claims limit, thereby stopping them having to contribute to the injured person's legal fees.
Eight years ago, the insurance industry led by Aviva and Axa persuaded the government that the claims system was wrong and that motor premiums could be reduced by £90 a year if the number of legal fees which solicitors receive was reduced in a successful claim on behalf of an injured person.
As a result, what are known as fixed fees were introduced in 2010. This fixed the amount to be paid to solicitors for any claim worth less than £10,000.
In 2013 the insurers made a further statement to government to saying that if solicitors’ costs were reduced again, then motor premiums would fall by £50 per year. A secret meeting was held at 10 Downing Street, hosted by David Cameron. The outcome was that laws were passed reducing the amount a solicitor gets paid for any whiplash claim to £500.
Well here we go again! Apparently if the government allows the insurers’ suggestion to become law, premiums will fall by £40.
To see the insurers claim that despite there being fewer motor accidents, claims have risen by 50% is ludicrous. This is typical tabloid sensationalism.
The Department for Work and Pensions (DWP) records every compensation claim that is made. The information is supplied by the insurance industry. DWP statistics show that the number of claims being made is falling year on year. These are the government’s own statistics.
The truth is that since all the changes, what we have actually seen is insurance industry profits increase. The cost of premiums has also increased while the only decrease has been in the amount a solicitor gets paid.
The really scary bit for injured people will come if the small claims limit is raised to £5,000, as people will not be able to recover their solicitor’s costs while the insurers will go on using solicitors and barristers to fight claims in court. This will leave injured people at the mercy of the aggressive insurers.
Anyone who has suffered a whiplash injury will know how debilitating it can be; often it involves time off work. Claims usually include loss of earnings, private physiotherapy and, where necessary, payment for care and assistance as well as recovery of any insurance excess. Injured people will not only be injured but out of pocket too, while the insurers will just get fatter off their increased profits.
Steve Vickers, ATE Account Manager at PIB Insurance Brokers
Whiplash exists – just ask anyone who has suffered from it. However, the UK does not have a compensation culture but rather a perception of a compensation culture thanks to claims management companies and their advertising.
One of the many reasons given by the government for its reforms, is the UK having a far higher number of whiplash claims than our European neighbours. However, World Bank research shows that the UK has the most congested roads in Europe, with 79% more vehicles per kilometre of road than ‘second placed’ Belgium. It is therefore not surprising that the UK has such a high number of low velocity impacts and resultant claims.
The proposed reforms will dramatically restrict people’s access to justice and are unlikely to reduce premiums for motorists. The Access to Justice Campaign estimates that the government’s plan will initially prevent 90 per cent of accident victims from pursuing claims with legal assistance if the small claims limited for claims is raised to £5000 – or even at all if the government simply removes the right for people pursuing soft tissue claims following road traffic accidents which is its preferred result and that there will be approximately 60,000 job losses across the industry in law firms, barrister’s chambers, medical agencies and insurers. The one area that will thrive as a result of the raising of the small claims limit is the claims management sector, which will undoubtedly take over the running of these cases for a percentage of the damages using the successful PPI refund model with no legal qualifications and no limit on what they can charge This will have the opposite effect of reducing the nuisance calls from claims management companies that plague us and crucially, it is also unlikely to reduce claims costs significantly for the motor insurers.
There have been numerous previous reforms to the RTA claims process, each one of them trumpeted that motor premiums would reduce, such as:
October 2003 introduced (stet)costs for RTA claims
April 2010 saw the introduction of the RTA claims portal and fixed portal costs
April 2013 saw portal costs slashed, the abolition of the recoverable success fees and ATE premiums
July 2013 Saw fixed fees introduced for/EL/PL claims as well
May 2014 – Court fees increased
April 2015 – Experts fees fixed
None of these measures reduced motor insurance premiums and it is a dubious claim to say that these reforms will help to reduce motor insurance premiums when another increase has just been announced in Insurance Premium Tax.
Francis is the Founder and Senior Partner or Francis George Solicitor-Advocate
Most personal injury cases are worth less than £5,000. If the small claims Court limit for personal injury claims is increased to £5,000.00, that will inevitably increase the amount of individuals acting as Litigants in Person. That could conflict with the Overriding Objective pursuant to Part 1 of the Civil Procedure Rules 1998 i.e. the parties will not be on an equal footing Defendants are almost always represented by Solicitors that are funded via the insurers and/or professional claims handlers.
The small claims track does not allow for the injured person recover costs from the unsuccessful party. The sequelae of the changes is that a genuine Claimant is likely to suffer more than once i.e. he/she has been injured through no fault of their own and secondly he/she will have to fund the legal help they will need to pursue a claim from their own pocket. The inevitable consequence is that many people with legitimate claims may not be able to afford legal help and in those circumstances, they will be forced to abandon their claims.
There is also a fear that as a consequence of people not being able to afford legal advice, Claims Management Companies will exploit the situation. The level of cold calls and spam text messages encouraging personal injury claims could in all likelihood increase. With the proposed changes, there is a risk that CMCs will seek to pursue unmeritorious claims and that will have the opposite effect of what the Government is trying to achieve.
To summarise, if the Small Claims Track limit is raised to £5,000 it is likely that genuine victims of injury will not be in a position to afford the legal help they need to bring genuine claims. There will be an increase in terms of cold calling from claims management companies who will seek to take advantage of vulnerable people who cannot afford legal representation.
In most cases, the most serious aspect of a car collision is the personal injury that has been suffered and not the damage to the vehicle. The purpose of insurance is to provide recompense for that. The Government would do better to tackle the costs associated with repair and replacement vehicles instead of seeking to reduce the level of damages where people have genuinely suffered an injury.
Commentary provided by Rhiannon Cambrook-Woods, Managing Director at Zest Recruitment & Consultancy LLP
There are over 60,000 legal practitioners employed in this sector and despite what the media say about the UK having a so-called ‘compensation culture’, to process claims even of low value still requires skill by both by the Claimant’s and the Defendant’s representatives. The number of potential employees affected is huge and the impact even more so. Indeed, we are already seeing a significant rise in the number of people looking to either change specialism or move away from law in its entirety.
To change specialism in the current climate is not easy. In terms of the impact on the innocent, one of the main concerns of this continual dumbing down is how many cases have been missed and or negligently settled where the matter should have indeed been referred to a complex/multi track team due to a resultant brain injury that was missed and the enormous consequences on that individual and his/her family. One such error is simply one too many.
Let us not forget those insurers who ‘own’ law firms and have made millions in profits over the years as well as the impact on its own employees. Policy wise I am confident that insurance firms will indeed be creative in offering policies, such as a ‘compensation’ policy. In all likelihood these will be branded in a far less obvious manner but the policy and cost for that policy will be available and indeed the insured will be encouraged to take out this protection in the event of an accident. It will be represented from a PR point of view in a much more subtle way or the finger will at the very lest be pointed towards Government reforms.
To add to the above, everyone has the potential to suffer at the consequence of another by accident and may indeed require assistance such as rehabilitation, recover costs such as loss of earnings, damaged property as well as compensation for the pain and loss of amenity suffered. But their access to justice as it currently stands will be severely restricted or at best come at a price in the absence of insurers, Solicitors and the Government taking a cohesive, genuinely measured approach where the injured party must remain at the very heart of the matter.
A large proportion of whiplash claims fall under £5,000.00, yet the injuries sustained at that level of compensation can be very debilitating and include at least three medical reports, a GP, Orthopaedic and often a psychological report.
The level of injury and indeed compensation over this amount is significantly worse and often includes even more reports from the same discipline plus additional disciplines such as neurosurgeons.
What is often misunderstood that the onset of a whiplash injury can manifest into something so much more such as fibromyalgia. The dumbing down of these reforms even further will mean those dealing with them will lack experience and indeed lack the red warning signs of when a whiplash is simply not a whiplash injury, a term far often overplayed and undervalued.
Aleksandra Kowalik, Principal of Law Firm Kowalik, here discusses Donal Trump’s intentions to deport thousands of criminal immigrants, how such a feat would look like in Europe, and how the attitudes of Poland’s people towards immigrants and refugees must change to prevent division across Europe.
Law Firm Kowalik, led by Principal Aleksandra Kowalik, talks about Poland’s current situation in regards to immigration law, the ongoing constitutional crisis ongoing in the nation, and how it can affect the firm’s clients and practice, in the UK and in Poland, with some reference to Brexit and possible implications for 2017.
Principal of Law Firm Kowalik, Aleksandra Kowalik, here provides a summary of the of immigration law history in Poland, assimilating the beginning of such legislation with that of the UK’s Immigration Act and EU regulations, thereafter introducing a domestic approach; a similarity in law that now assists the firm greatly with its cases in Poland.
The way in which a company treats its employees speaks volumes about the company’s morals and when this goes wrong, it can lead to the employee, much to their employer’s dismay, seeking legal action. Earlier this year, Employment Law reformations gained a contentious reaction in France and great changes have been made recently in the employment law sector; thus, this month we speak with Pascal Petrel, who specialises in Labour Law. He gives his expert insight into France’s reformation in employment law and how to advise clients on these new regulations.
When negotiating transactions in employment relations, what is the most important aspect to consider? What are the challenges with negotiations?
In individual negotiation transactions, the most important aspect to consider is overall security in a breach of contract situation. This is not only to ensure against subsequent employee litigation, but also the safeguarding of confidential information to which he had access. The greatest challenge to be addressed when negotiating a transaction is that of the agreement's general balance, for the best protection of the company's interests. Therefore, limits should be set, beyond which interest in a settlement agreement may fade.
How has the employment law sector changed over the years in France? Are there any more changes underway on which people should keep an eye?
Employment and social security law has undergone great changes in recent years. The legislature has primarily considered the simplification of legal mechanisms, mainly in terms of collective labour relations, by regulating social dialogue with workers' representative institutions. The second area of change is in the growing importance of the collective agreement as a legal source, permitting to take into consideration the needs of the key businesses and employees involved.
What is the most challenging aspect of your role and how do you overcome this?
The labour law attorney has a duty to be constantly attentive to his client, comprehend the company's social context from the very start and determine the most appropriate response in the given situation. To achieve this level of expertise, two factors are ultimately crucial: on the one hand, the Petrel Associés (P&A) law firm's more than 20 years of experience; and on the other, responsiveness to the needs expressed, seeking, prior to any legal solution, a practical solution to the problem it confronts.
As a thought leader, if you could implement legislative changes in France to facilitate your clients, where would you start?
One of the most challenging aspects of the legislation development stage, is the of the number of working hours. Hence, the first reform would be to introduce employee work schedule flexibility, subject to workers' agreement, of course. Today, too many situations related to working hours can lead to extremely negative consequences for the company financially, or even involving criminal issues.
How do you and your company ensure you go the extra mile when advising your clients on new employment regulations?
I have advised companies for well over 30 years; this is the first step in understanding the new legislation process. The second is studying new regulations, comparing them to existing ones and guiding the principles of the legal system, as understood by judges. This ensures, where legislation has not been fully realised, or not been thoroughly thought out, you are able to advise the client in the most efficient and secure way possible.
What is the most common type of case with which you deal? Is there any advice you could offer companies to avoid such case?
Many topics deal with aspects of working hours that are starting to be mixed up with new information and communications technology usage. In this matter, the best rule remains that of anticipating their use and hours of connection / disconnection, to avoid situations of overload.
What is the most rewarding aspect of your role and why?
Obviously, client satisfaction and obtaining the desired result, are the two main driving forces of our profession. This forms an integral part of the firm's quality charter.
As P&A works with an international network of law firms, how do you operate differently regarding international firms? What are the difficulties you face?
I have previously worked in New York and have worked for foreign companies for many years, mainly American ones, in cooperation with the Skadden ARPS firm. Therefore, P&A relies on its international network; it enables us to meet the needs of our international clients, primarily on the subject of international mobility. It also has an international dimension given its offices in Tel Aviv.
What do you want to accomplish achieve in 2017?
P&A has decided to update its website to better develop its communication and marketing policy by using all multimedia tools available, and through social networks.
P&A will continue to expand internationally, especially since for two years, I have been President of the Labor Law Commission of the International Union of Lawyers.
Divorce disputes can become interestingly complex for any family lawyer, and in some cases, relying on a large experienced team can be the best option. Here LM hears from Fiona Wood, Partner & Practice Group Leader in the Family Team at Slater & Gordon, on divorce proceedings and financial settlements, their potential impact on business owners, and the particular sensitivity that must be dedicated to children in some of these cases.
You are renowned for your ‘calm approach’; how do you maintain a consistent level of calm when working with sensitive cases and under pressure?
I always explain to clients the legal and practical processes involved at the outset of their divorce, how I envisage their case progressing, what I will do for them, and what I need them to do. Knowing that there is an action plan helps clients feel more proactive and confident during what is often a very difficult time. Knowing that my client and I are working together as a team to progress the case means that there should be few unexpected issues that arise, which means less pressure for both me and my client.
What are the most prominent and common issues that arise pertaining to your family clients in the UK?
The majority of my work involves obtaining a financial settlement for my clients when they divorce. All clients want to know how much money they will receive as part of the settlement, and whether a clean break settlement is achievable or if spousal maintenance will need to be paid. Many of my clients are business owners and are very worried about the impact that their divorce will have on their business.
What challenges accompany these issues and how do you navigate them?
The law that governs financial settlements on divorce is a law of discretion. This means that different judges will make different orders when presented with the same set of facts. This can make it difficult to predict what financial settlement a client will receive if they argue their case before a judge. Whilst there is usually a range of likely outcomes, this can be very frustrating for both lawyers and clients. Having done this job for nearly twenty years, I have a wealth of experience to draw upon. I also have very experienced colleagues, including one who sits part time as a judge, whose experience I also tap into. One of the advantages of working in a large team is that if you have not come across something unusual before, one of your colleagues is likely to have.
How do you deal with the mix of business and emotions in a sensitive, yet effective way? What complications arise in these scenarios when children are involved?
The end of a marriage is a very difficult time for the vast majority of those who divorce. Whilst some seem to cope better than others on a superficial level, I always try to remember that I am not meeting my client at their best. I try to be patient and understanding, but it is also important for me to remember that I am not a trained counsellor and that if my client needs that type of help I should suggest that they speak to an appropriately trained professional. Luckily, most parents put their children first when they separate, and try not to involve them in their dispute with their spouse. Sadly, in a small number of cases this does not happen and solicitors need to become involved with issues relating to the children. As a parent, I can see that this is very difficult for clients. I encourage a child centric approach to children issues and remind parents that they need to try to communicate with each other in a reasonable way for the sake of their children. Mediation is very good in assisting newly separated parents to deal with issues relating to their children. I often encourage mediation where issues regarding children arise.
