Understand Your Rights. Solve Your Legal Problems
Last week the UK government stated it did not want to establish any border posts between the republic of Ireland and Northern Ireland, creating a manned EU – UK border. The UK’s new position paper on Brexit has suggested a ‘new customs partnership’ or a ‘highly streamlined customs arrangement.’
Critics involved in the Brexit proposals have however spoken out against the lack detail followed towards these plans, claiming the UK’s suggestions are not backed by credible detail on how such ‘customs partnership’ can be achieved.
Lawyer Monthly this week heard Your Thoughts, and has below included some comments from experts on the subject.
Joanna Hunt, Senior Associate, Lewis Silkin:
The policy paper provides little insight into the Government’s plan for the Irish border issue. It is simply a statement of intent; that it wants to continue to protect the common travel area which allows free movement for Irish and British Nationals across the border and provides for minimal checks for other nationalities. In the paper they simply state that ‘the future immigration system will not impact on the ability to enter the UK from within the CTA free from routine border controls’ and ‘the continued operation of the CTA would not result in any negative implications for other EEA nationals exercising their free movement rights in Ireland’.
At the very best this is wishful thinking on the part of the Government. The policy paper that was issued in June on the status of EEA nationals and their family members made clear that they would be brought within the UK’s immigration system as they were to be given indefinite leave to remain in the UK. It is to be assumed therefore that in the future, EEA nationals visiting the UK will require entry clearance as a visitor at a border. If they are entering freely into Ireland by virtue of EU free movement law, at which point will they be granted entry clearance to the UK if there is to be no official border between Ireland and Northern Ireland? The policy paper has next to no detail on how this will actually work and offers little in the way of ideas as to how this complex issue will be resolved.
If EU nationals in the future are going to be required to gain entry clearance as visitors to the UK, as other nationalities beyond the EU do now, then there needs to be a physical examination of their passport. Currently at borders this is done either by an Immigration Official or by a biometric passport reader. Either way, it requires an individual to stop at a ‘border’. It is very difficult to imagine how a passport can be checked without there being some form of physical infrastructure there to complete the check lawfully. The end result would be that EEA nationals would easily be able to continue to enter the UK and the Government’s stated aim of controlling immigration will be unachievable.
I think the EU are going to be unimpressed by these proposals. The Government has simply stated an intention to keep the CTA as is and has not attempted to provide any realistic answer to how the movement of EEA nationals is to be controlled. The policy paper puts the ball back in the EU’s court to come up with a response which can only aggravate their negotiating counterparts in Brussels.
Jonathan Beech, Managing Director, Migrate UK:
With open borders for all EU citizens, the onus will be on UK employers to understand who can work for them and who can’t. Open border controls for EU citizens will mean that no immigration endorsements will be provided that would normally make it clear to one’s immigration status and restrictions. This will put more pressure on HR professionals to understand how to comply with working rights and immigration rules.
The Home Office have recently published a policy paper that tries to clarify an EU citizen’s immigration status in the future. This puts forward a number of scenarios that are linked to (yet to be confirmed) dates to when an EU citizen is deemed to be a ‘qualified person’. There could be some confusion here which in turn could impact whether UK employees wish to hire EEA citizens at all in the future.
We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!
iTrump, an app developer, appears to have prevailed in a long-running trademark war against the US president's business operation, without the use of a lawyer.
The app, iTrump, doesn’t actually have anything to do with the president, and features, as per the image below, a virtual trumpet for the purposes of learning to play.
(Photo by Tom Scharfeld)
The app is designed by Tom Scharfeld under his business name ‘Spoonjack LLC’, after the development of iBone, a similar app with the trombone in mind.
Sharon Daboul, Senior Associate, at Intellectual Property law firm, EIP, told Lawyer Monthly: “This decision is the latest in a six year battle between an individual app developer and Donald Trump, which appears to have started when Trump’s lawyers demanded that he withdraw an application to register “iTrump” as a trademark for “computer software for use in producing sound”, back in 2010. After a favourable decision in 2013, the app developer applied to cancel some of Trump’s trademark registrations, leading to the most recent decision.
“In the US, the majority of disputes will settle before a decision is reached. If battle goes all the way to judgment, it’s not unusual for a US opposition or cancellation action to take around three years to reach a conclusion. The length of this particular dispute is due to the multiple proceedings between the parties.
“The decision is refreshing; the majority of individuals would have been intimidated by a letter from Trump’s lawyers, but in this case, the app developer rightfully stood his ground.
“Trademarks are powerful assets, irrespective of a company’s size.”
What do you think of Trump’s intimidating approach to the small developer?
Andy Martens, Global Head of Legal Product and Editorial, explains the seismic shifts the legal industry has been undergoing since 2009, and how Thomson Reuters Practical Law Connect integrates the best of Westlaw and Practical Law to deliver an unparalleled Answer Company experience for legal professionals.
Norton Rose Fulbright recently announced that Alison Kult, a fourth year student at the School of Law at the University of PNG (UPNG), has been awarded its first scholarship to support the pursuit of quality in legal studies in Papua New Guinea.
The Norton Rose Fulbright PNG Legal Scholarship provides the recipient with up to K10,000 ($3,153) in payments and reimbursements for major costs related to their study and to reward high achievement in their final year studies. The firm created the scholarship to support PNG law students who have already shown a commitment to their undergraduate studies.
According to Mrs Karo Lelai, Principal of Norton Rose Fulbright PNG and a member of the judging committee, the committee was very impressed by the applications received for the scholarship.
'The quality of applications was very high overall, and the shortlisted applicants were very strong,' she said. 'All four students were very impressive, and a credit to their families and the School of Law at the University of PNG, but Alison was the unanimous choice of the judging committee to be the recipient of the scholarship.
'On behalf of the committee and Norton Rose Fulbright I would like to formally congratulate Alison Kult on being the recipient of the Norton Rose Fulbright PNG Legal Scholarship 2017.'
In addition to the scholarship, the judging committee was also given discretion to select up to two additional applicants to receive a highly commended award of K1,000 each.
Wayne Spanner, another of the judging committee and managing partner of Norton Rose Fulbright in Australia, said 'Given the very high quality of applications from all the four shortlisted candidates, instead of awarding up to two highly commended awards we have awarded three.
'On behalf of the judging committee and the firm, I would like to congratulate Gideon Pogla, Naomi Riyong and Benjamin Yalehen Jnr on being shortlisted for the scholarship and for receiving highly commended awards,' he added.
To be eligible for the 2017 scholarship, an individual must be a citizen of PNG, enrolled in an undergraduate degree with a major in law, have completed the first three years of full time study (or part time equivalent) in the degree, and be continuing these studies in 2017.
The members of the judging committee for this year’s scholarship are:
(Source: Norton Rose Fulbright)
Following the release of the SFO's annual report a few weeks back, Dominic Carman, noted legal commentator, discusses with Lawyer Monthly the lack of any mentions of Libor within the 76-page document. Given that David Green QC has previously stated that the SFO should be judged on their success in the Libor case, this is a startling omission.
A decade ago, the term LIBOR was rarely heard outside the City of London. But since the crisis of 2007/8, the London Interbank Offered Rate, which is used as a global benchmark to price more than $350tn of financial products, has become one of the most widely-used acronyms in British media.
On 19th July, Andrew Bailey, chief executive of the Financial Conduct Authority, made a surprise announcement: he signalled the imminent death of LIBOR, confirming that the rate will be replaced by the end of 2021. The current situation is “not only unsustainable but also undesirable,” he said, after conceding that banks no longer wanted to participate in setting the rate.
By coincidence, Bailey’s announcement overshadowed news on the same day that a New York appeal court had overturned the convictions of two former Rabobank traders. In the first US criminal appeal related to US investigations into LIBOR manipulation, the duo - Anthony Allen and Anthony Conti, both from Britain - had been convicted in November 2015.
LIBOR’s demise may come as a welcome relief to David Green QC, director of the Serious Fraud Office, for whom the term has almost become omerta: he has developed a total silence on the subject. As evidence, one has to look no further than the SFO’s latest annual report and accounts for 2016-17, published less than a week before Bailey’s speech. Although the document stretches to more than 20,000 words over 76 pages, it mentions LIBOR only once – referring to the annual rate of interest in a fine to be paid by Rolls-Royce. Green’s lengthy overview makes no reference to LIBOR at all.
This is rather strange, given the synonymous relationship that had developed between the SFO and LIBOR over the last five years. Back in November 2012, shortly after he had taken over the SFO hot seat, Green was very keen to talk about LIBOR. Under questioning by MPs on the Justice Select Committee, he spoke confidently in asserting that the SFO should be judged on the outcome of its investigations into LIBOR. He informed them that the SFO had started its LIBOR investigations in July 2012, reversing a decision by his predecessor, and that a team of 40 investigators had been tasked to look into the activities of multiple traders at several banks.
Green’s bravado LIBOR rhetoric continued in a slew of subsequent media interviews. What then followed was a series of London LIBOR trials involving bank traders like the Rabobank duo. In the first of these, Tom Hayes was found guilty in August 2015 and received a 14-year sentence, later reduced to 11 years on appeal. Green expressed a “certain professional satisfaction” over the Hayes conviction, adding: “Plainly, it was a very important one. It was the biggest investigation we have ever done.”
However, in January 2016, five City dealers were cleared in a separate trial of helping Hayes to manipulate LIBOR. More followed. In July 2016, four former Barclays traderswere convicted of LIBOR rigging, receiving sentences of between two years and nine months and six and half years.
Green showed less schadenfreude at this result: “The key issue in this case was dishonesty. By their verdicts the jury demonstrated they were sure that the conduct of three of the defendants, Jonathan Mathew, Jay Merchant and Alex Pabon was dishonest. Senior LIBOR submitter Peter Johnson accepted he had been dishonest when he pleaded guilty to the offence in October 2014. The trial in this country of American nationals also demonstrates the extent to which the response to LIBOR manipulation has been international and the subject of extensive cooperation between US and UK authorities.”
However, in April 2017, following a six-week retrial, Stylianos Contogoulas and Ryan Reich, both former Barclays traders, were acquitted of LIBOR manipulation. The pair had originally been tried alongside the other four Barclays traders convicted in 2016.
Of the 19 traders charged in respect of Libor and Euribor manipulation, there has been one guilty plea, four convictions and eight acquittals. The remaining six defendants will be tried in April 2018. But of the four convictions, at least two are subject to appeal following fresh evidence at the Contouglas/Reich re-trial. Under cross-examination, the lead SFO expert witness acknowledged that his expertise was deficient when it was revealed that he had to text questions on technical points from the courtroom. The symbolic pressure of the two successful appeals in New York further undermines the SFO’s Libor investigations in London.
And so we come back to the strange absence of LIBOR in the SFO annual review. In a year filled with extensive news of LIBOR trials, it is as if they never happened. When questioned over LIBOR by another Parliamentary Select Committee last October, Green told MPs: “We don't go after the people. We go after the evidence and we go after the people the evidence points to.”
But according to its latest report, the evidence that the SFO has spent tens of thousands of hours and many millions of pounds investigating and prosecuting LIBOR traders has simply vanished. One important question remains unanswered: why?
Photo: Heathcliff O'Malley
Following the far-right and anti-fascist protests in the US this week, Angharad Aspinall, employment lawyer at Cardiff and London based law firm, Capital Law, comments for Lawyer Monthly.
Over the weekend, many will have seen the news of violent clashes in the US in which far right and anti-fascist marches ended in one death and several more demonstrators being injured. Tweeting after the demonstrations on Saturday, a Twitter account, Yes You’re Racist, began ‘outing’ ‘Alt right’ demonstrators. This has resulted in at least one man being dismissed from his job after appearing on the Twitter feed and the employer going as far to post comments surrounding the termination of the individual’s employment.
But what if a similar situation were to happen here in the UK and how would this sit with UK employment law? Would an employer be able to dismiss an employee for their attendance at such a demonstration? There are two considerations here. Firstly, whether dismissal would be fair and secondly whether the dismissal would be discriminatory based on the employee’s beliefs.
If the employee qualifies to being a claim for unfair dismissal, dismissal must be for one of the five fair reasons. These are capability, conduct, redundancy, illegality and some other substantial reason or SOSR. Such a situation could fall within one of two categories; conduct or SOSR. With regard to conduct, an employer can dismiss for conduct outside of work where the conduct in question pertains to the employment relationship. However simply taking part in such a demonstration would not in itself allow the employer to dismiss for misconduct; the employer would need to consider whether attending such a demonstration is at odds with how the employee is expected to carry out their job.
In such situations, the employer would more often than not consider dismissal for SOSR. In demonstrating this, the employer could rely on reputational risk. To demonstrate that dismissal falls within this reason the employer would need to provide evidence of such a risk e.g. whether customers/ clients/ service users have discovered the employee took part in the demonstration and no longer wish to deal with the employer or that publicity would have a detrimental impact on an employer’s business. It is therefore important for employers to analyse the situation in the round rather than automatically move to dismissal without any evidence of the consequences of the employee’s attendance at such an event.
Employers also need to consider the impact of discrimination legislation and particularly whether the employee’s right to express any religious or philosophical beliefs has been infringed. An employee would need to demonstrate that their views met the definition of a religious or philosophical belief. This definition has been developed through case law into a multi-point test which states that the “belief” must be more than a mere viewpoint or opinion; it must attain a certain level of cogency, seriousness, cohesion and importance and it must be worthy of respect in a democratic society and not be incompatible with human dignity and/or conflict with the fundamental rights of others. It would be for the employee to demonstrate that their “belief” meet this definition. The general consensus is that beliefs in Neo-Nazi or fascism would not meet this definition but in the situation above, it would still depend upon whether the employee’s actual personal “belief” resembled those types of groups.
If the employee were to meet the definition, then the employer would need to consider carefully the reason for dismissal. As stated above, simply attending such a demonstration does not in itself give the employer grounds to dismiss. However, if the fact that the employee has attended the demonstration leads to difficulties with other employees or customers of the employer then the employer would not then be taking action on the grounds on the employee’s belief, but in response to any concerns which flow from that. This is perfectly legitimate although a clear chronology demonstrating the effect of the employee’s attendance and the damage to the employer’s business along with evidence should be obtained to ensure it can be shown that the dismissal is for that reason and not because of the employee’s beliefs.
In conclusion, whilst there are options available to employers who find themselves in a situation where an employee has attended such controversial demonstrations, care needs to be taken to consider the matter in the round. A knee jerk reaction could lead to claims for discrimination and unfair dismissal and potential further reputation damage and cost and therefore a thorough investigation is advised before taking such action.
Clifford Chance and Allen & Overy have advised Liverpool Victoria Friendly Society and Allianz respectively on their joint venture, creating a general insurance business with over 6 million customers. The new LV= branded joint venture will be the UK’s third largest personal insurer with over £1.7 billion annual premium income.
The first stage of the transaction is expected to close during the second half of 2017. LV= will receive £500 million from Allianz in exchange for a 49% stake in LV='s General Insurance businesses (LV= GI). The new, long-term joint venture will acquire Allianz's personal home and motor insurer's renewal rights while Allianz will obtain LV= GI's commercial insurer's renewal rights. The second stage of the transaction will take place in 2019 and will see Allianz pay £213 million for a further 20.9% stake in LV= GI through an agreed, forward purchase based on a total valuation of £1.020 billion for 100 percent of LV= GI.
The transaction allows Allianz and LV= to take a leading role in the growing UK retail sector by creating a strong and customer-centric insurer in the personal home and motor insurance markets. While the joint venture offers Allianz the opportunity to partner with a trusted brand offering excellent customer service, it provides LV=, the UK's most trusted and most recommended insurer, the financial strength and expertise to further grow in general insurance and develop in its core Life & Pensions market.
Ashley Prebble, lead partner on the deal said, "It's been a pleasure to work once again with our longstanding client LV= on this major deal. The long term nature of the joint venture and support from one of the world's largest insurers will allow LV= to build on their highly successful brand and continue to grow their general insurance business."
Insurance partner Ashley Prebble led the Clifford Chance team, with support from partners Jonathan Kewley, Katherine Coates, Hilary Evenett, Mike Crossan and Nelson Jung.
The A&O team was led by Corporate partner Hans Diekmann in Dusseldorf, with Corporate partner Philip Jarvis in London and senior associate Claire Coppel.
(Sources: Clifford Chance / A&O)
Last week lawyer monthly reported on the infamous Google Diversity memo that circulated from within the corporation and sparked much backlash worldwide. The employee that posted the memo, James Damore, was subsequently fired and Google, or specifically Pichai, said: “our co-workers shouldn’t have to worry that each time they open their mouths to speak in a meeting they have to prove that they are not like the memo states, being agreeable’ rather than ‘assertive’, showing ‘lower stress tolerance’ or being ‘neurotic’.”
Lawyer monthly asked Your Thoughts on the matter, and has below listed several comments sent in by the experts.
Emma Bartlett, Partner, Charles Russell Speechlys:
The infamous “Google diversity memo” crystallises stereotypical views rejecting the need to take positive action to improve gender diversity in STEM. The way the Googler chose to share his views was ill-considered. His internal reputation was severely damaged. If he wanted to understand or challenge Google’s diversity objectives, he could have found a more professional way of doing so. Not everyone has to agree on diversity matters. In fact, if views go unchallenged, then the creativity which diversity champions promote could be lost as employers plot measures to improve workplace representation. However, certain views – such as should we be improving female representation in technology at all given our biological differences – should be carefully raised to avoid offending primary principles of equality and stated principles of the employer. The Googler instead created a hostile environment for women in expressing his views as he did.
The Googler’s memo is a massive step back to the attitudes which lead to women being discouraged from taking that path. STEM employers have long recognised worker shortages if recruitment pools are limited to white men. Positive action to improve female uptake in STEM goes right back to primary schools to encourage girls to choose subjects that lead them to STEM university courses.
It’s not a question of freedom of speech; in the workplace, expressing opinions which create an offensive or hostile environment for women (or any workers) constitutes unlawful discrimination. Given that the Googler was senior, it’s reasonable to conclude that he may have not promoted a woman; not because of lack of qualifications, but because of his belief that her chromosomes weren’t right for a technology role.
The same fate could have befallen the Googler had he “privately” posted his comments on social media. If colleagues could have become aware of them, his internal reputation could have been equally trashed. Remember the Apple employee who was fairly dismissed for denigrating Apple products, in breach of Apple’s policies, privately on Facebook forgetting that co-workers were Facebook friends? He could not legitimately have expected his posts to remain private; friends owe no confidentiality obligations. Similarly, a Game Retail manager was fairly dismissed for his prolific offensive non-work related tweets in circumstances where he was followed by 65 of the employer’s stores. His internal reputation was severely damaged.
Jo Sellick, Managing Director, Sellick Partnership:
Google is known for being a forward-thinking organisation with a great employer brand. It is home to a workplace that barely needs to market itself and has potential candidates queuing up for a slice of the Google dream. You would assume, then, that every single employee is of the highest calibre and fully embodies the Google vision. So it was surprising to many when news emerged of a member of staff being fired when he published a company memo which suggested women were inherently less suited to certain tech roles.
Amongst other remarks, the former employee, James Damore, wrote: “The distribution of preferences and abilities of men and women differ in part due to biological causes, and that these differences may explain why we don’t see equal representation of women in tech and leadership.” Google took the decision to fire Damore and the firm’s chief executive, Sundar Pichai, said parts of the memo “violate our code of conduct and cross the line by advancing harmful gender stereotypes”. I agree with Pichai’s decision and believe Google had no other choice. Firms as big as the tech giant should be spearheading the fight against inequality in the workplace and they should have a solid sense of their company values. Whatever these values may be, it is important for companies to uphold their policies across the board and stay true to these morals. This ensures that the right kind of candidate is drawn to the workforce and that everybody is working towards the same end goal.
This is very different to prohibiting free speech in the workplace, which is equally risky. When the EU Referendum took place last year, it was great to hear staff discussing different political views and taking an interest in topical events. I like to see employees who are confident in displaying their personal viewpoints and setting out their arguments intelligently, but this is very different to saying something which you know could cause offence. We strive to have a diverse workforce, which of course includes employing people of differing viewpoints on all sorts of issues. But encouraging staff to express themselves while not offending others can be a fine line, and the onus is on senior management to decide what is and is not appropriate for that particular workplace. This should be set out in a clear code of conduct that everybody reads and understands, so that it does not come as a surprise if the employer takes action against comments that flout the rules.
In terms of Damore’s beliefs, I must express my disagreement and concern that he is assuming such outdated stereotypes when talking about suitability for roles. His assumptions could well cause as much offence to men as they may to women, as gender simply should not come into play when considering whether somebody is right for a job. Yes there is a gender imbalance in the technology sector, but this has nothing to do with biological differences and everything to do with education and how we talk about STEM subjects with children from an early age. If we are serious about equality we need to start educating boys and girls in STEM subjects at a grassroots level and ensure there are plenty of male and female role models working in the sector for young people to admire and emulate. This is a generational change that will take time, but it is entirely possible and initiatives like teaching coding to primary school pupils are extremely encouraging.
Diversity outside of gender is equally crucial and we should introduce mentorships within workplaces that help people of all backgrounds to progress in their chosen career. As National Inclusion Week approaches in September, I am keen to see businesses analysing their company data and seeing just how inclusive and diverse they are and we will be undertaking the same exercise ourselves. Once companies know this information, they can then take steps to address the balance moving forward. Until this kind of action happens we may well continue to see unequal workplaces which perpetuate outdated stereotypes and beliefs.
Jacob Demeza-Wilkinson, Employment Law Consultant, ELAS Group:
This case highlights a few important points for employers. Firstly, and most obviously, it shows the importance of taking quick and firm action where an employee is alleged to have been involved in misconduct. The backlash for Google had they not been seen to take quick, effective and proportionate action could have been particularly severe, and this demonstrates how an employee’s actions can affect the reputation of the business if not dealt with.
Where an employee is reported to have breached a policy or carried out an act of misconduct, it is important to carry out a full and thorough investigation immediately. If you find substance to the allegations, you should then proceed to disciplinary action.
Secondly, the case shows the significance of having in place proper policies and procedures to inform staff what is and is not acceptable in the workplace. Here, Google had a code of conduct which set out clearly what behaviour was acceptable and, as the employee clearly breached this, they were able to act quickly as a result. Where there are no policies and procedures in place, it can often make it difficult to decide what is or is not gross misconduct, whereas a policy outlining what is will make it easier to make the decision and will provide solid supporting evidence should that decision be tested moving forward.
The case therefore shows that in order to manage employees properly and protect the reputation of your business, you should have clear policies in place setting out your expectations for staff, and you should act promptly and effectively when you become aware a policy may have been breached.
David Bradley, Chairman and Head of Employment, Ramsdens Solicitors:
What was James Damore thinking? A doctorate in Systems Biology from Harvard lay behind his attack on the “politically correct” approach by his employer Google to diversity in the workplace. In particular, their policy designed to redress the imbalance between men and women in leadership positions within the tech sector. He has now been fired.
The essence of Damore’s argument, that men and women have different sets of bias, that in summary direct men more towards leadership and women toward team playing has received the criticism it deserves. Damore himself makes clear that not all men and women can be judged on this criteria: so why say it publicly? Diversity is about valuing individual contributions and assessing skills individually and unless there is overwhelming evidence that groups can be defined in a particular way (which there is not), don’t do it! Damore may have thought he was right and entitled to have his say. He has received a salutary lesson that applying a filter to his thoughts may have been as valuable as his view of his own intelligence. Even where we know tomatoes are fruit, we don’t put them in a fruit salad!
The issues do spark a wider debate. Are we too politically correct? Sometimes yes, and it can get in the way of effective management. Some managers and leaders shy away from difficult decisions because the person involved is a man, women, black, white etc. and that is as damaging to the diversity debate as Damore’s diatribe. Effective and confident leaders assess a situation, reflect and act where appropriate, irrespective of bias or the concern that perceived bias can create. You cannot go far wrong following Mark Twain, “it’s never wrong to do the right thing”! The problem is working out what the “right” thing is and on this occasion James Damore came up short.
Sarah Austin, Employment Lawyer, Capital Law:
A new week brings a new high-profile casualty in terms of diversity in the workplace – this time Google.
Google has come under intense criticism this week. An un-named male employee produced a report claiming that the lack of women in tops jobs in the tech industry was due to biological differences between men and women. He urged people to stop assuming that gender gaps imply sexism. He also argued that Google should stop its diversity campaigns – and pursue a path of ‘ideological diversity’.
The author denies that the gender pay gap exists at all. He states that, although in a national aggregate women have lower salaries than men for a variety of different reasons, women get paid just as much as men if they do the same work. Unfortunately for the author, the US Department of Labour disagrees. Google is currently fighting a wage discrimination investigation, following a finding that the company routinely pays women less than men in comparable roles.
Former employees of Google have spoken out on social media, claiming that they encountered similar views in Google. One pointed out that those at the company who share these views are responsible for performance reviews and interviewing people, and claims that they discriminate. According to its own diversity figures published in June, Google’s workforce is 69% male (and 56% white). Women fill only 25% of leadership roles and 20% of technical jobs, such as computer programmers.
Google’s new Vice President of Diversity, Integrity & Governance, Danielle Brown, felt compelled to issue a statement in response to the report. In her statement, she confirms an unequivocal belief that diversity and inclusion are critical to Google’s success. She said: “Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions. But that discourse needs to work alongside the principles of equal employment found in our Code of Conduct, policies and anti-discrimination laws.”
Kate Shorney-Morris, Managing Director, Zest Recruitment & Consultancy:
This is a classic oxymoron. The suggestion in the quote is that the issue of gender inequality and sexism are totally separate issues, yet one cannot exist without the other. Later in the memo, Damore goes on to suggest that women “have more neuroticism” and “higher levels of anxiety” that lead to the “lower number of women in high stress jobs.
This case highlights two key points - gender equality is still alive and kicking, and that not enough is being done to eradicate it from the workplace even in an industry famed for its meritocratic structure and open culture. Unfortunately, the legal sector is also guilty of failing to address the issue.
Indeed, figures published by The Law Society stated that while almost half (48.8%) of all practicing certificate holders in England and Wales are women, less than 1 in 3 (29%) are partners with the number even lower in the Magic Circle.
So while the legal sector may proclaim that an ingrained glass ceiling does not exist, a quick look at the figures suggests otherwise. Equally, there are many law firms banging the drum for gender parity and diversity but it is clear they are not doing so in unison. Of course, we cannot say with absolute certainty that the low level of women occupying senior roles within the profession is a direct consequence of gender inequality per se, but it is a key contributor.
The legal sector is in the unique position to lead from the front by dispelling the many myths that persist about gender and diversity and extolling the obvious benefits to creating a level playing field for everyone, regardless of gender, ethnicity, orientation, religion or any other pigeonhole we seem so quick to categorise an individual.
The case is a stark reminder that businesses still have some way to go before we reach a state where diversity is no longer an issue, whether in thought or in practice.
Jim Wright, Partner, Shulmans LLP:
James Damore was the author of the Google memorandum that said “we need to stop assuming that gender gaps imply sexism” and “abilities of men and women differ in part due to biological causes.” Google dismissed Mr Damore after his internal memorandum was leaked to the press.
On paper, Google has a diversity issue. Its own data shows its workforce is 69% male and only 20% of its technical jobs are held by women. This, in part, justifies the wage discrimination investigation by the US Department of Labour that Google currently faces.
Theoretically, raw data demonstrating a gender pay gap can be explained by “material factors” as recognised by UK law, where sex discrimination is in no way associated with decisions affecting remuneration and employee reward.
There is no legal support for Mr Damore’s contention that biological causes justify difference in treatment. The UK’s Equal Pay Legislation does not permit this to be a material factor in justifying differential pay rates.
It is likely that Mr Damore’s contentions demonstrate a stereotypical perception as to the allocation of roles based on gender – his comments about biological differences can only taint his supposed justification with sex discrimination.
Although Mr Damore’s rapid dismissal may help Google defend itself from complaints, his comments could be interpreted as demonstrating that the business has a systemic pay discrimination issue and a culture that refuses to try to tackle such matters head on. As well as legal liability, Google is undoubtedly concerned about negative publicity.
Mr Damore’s comment that “we need to stop assuming that gender gaps imply sexism” is wrong. In addition, it demonstrates significant inefficiency on Google’s behalf; Google appears able to find talent from only part, not the whole, of the potential workforce.
Emma Tegerdine, Associate and Employment Solicitor, Cleggs Solicitors:
From an employment law perspective this case is relatively cut and dry – in so much as the employer was left with very little choice as to how to deal with such a flagrant and public breach of its diversity and equality policy by one of its employees.
Most diversity and equality issues which arise in the workplace are not as blatant as this, but the beliefs set out in the memo James Damore wrote, which he circulated to his colleagues, were so outdated and shocking that Google, as the employer, was left with no other option but to take disciplinary action. If Google was to have taken any other action it may have looked as if it was not taking the issue seriously enough, and was trying to brush it under the carpet.
Mr Damore appeared to believe he had the right to freedom of speech - meaning that had the right to have his opinions heard – no matter how discriminatory his beliefs may be. This erroneous belief is shared by many employees in the UK. However, employees are required to comply with their employers’ policies, including polices relating to equality in the workplace, and do not have the right to share discriminatory views at work.
In the UK, the Equality Act 2010 would apply, with the potential for sex harassment claims being submitted against both Mr Damore and his employer, by employees who were offended by the memo. Claims could be brought on the basis that the circulation of the memo was ‘unwanted conduct related to sex’ which had the ‘purpose or effect of violating the employee’s dignity, or creating and an intimidating, hostile, degrading, humiliating, or offensive environment’ for them. If Google had failed to act, this would have encouraged other employees with similar beliefs to air their views and substantially increased the risk of such claims.
Google has a male-dominated workforce and has recently come under scrutiny for the alleged pay gap between male and of female employees, so it has to be particularly careful when it comes to employment diversity issues.
The bottom line here is that the publishing of this memo was such a clear breach of Google’s policy that there was little else it could have done but dismiss Mr Damore. Had I been representing the employer, I would have advised that swift and strong disciplinary action was taken. Given that Google has already come under investigation for gender bias in the workplace, it needed to take this very seriously, so I believe the correct outcome has been reached.
Mike Hibbs, Partner and Head of Employment, Shakespeare Martineau:
The leaked internal memo from Google has made headlines across the globe recently, however underneath the debate about whether Google was morally right to dismiss the employee or not, lie more serious issues regarding freedom of speech, unfair dismissal and brand reputation.
Whilst a company is often entitled to summarily dismiss an employee if they are found to be in serious breach of a code of conduct, as was the case with Google, it is highly important that the code of conduct reflects the culture, expectations and corporate ethos of the business.
The codes of conduct need to strike a careful balance between allowing freedom of expression (which is a fundamental right of all UK citizens enshrined under Article 10 of the European Convention on Human Rights), and protecting the rights of other individuals and employees not to be subject to harassment or inappropriate comment.
Google said that the memo perpetuated gender stereotypes towards females which violated its code of conduct. However, Google is a business that generally promotes the free use of content so the snap decision to fire a member of staff for criticising a company diversity policy could seem to stand at odds with its core values. Indeed, it could be argued that in choosing to dismiss the employee, Google has chosen to discriminate against the individual by not allowing him to express his own opinion.
The seniority of the role of the individual within the organisation and the type of communication is significant when choosing an appropriate course of action. If it was the CEO who had sent the memo then being publically seen to hold the individual accountable may be reasonable to protect a company’s brand image and values However, where it is a relatively low-level employee expressing a view via an internal communication channel, dismissal may not be quite so easy to justify.
In such cases it is vital that businesses have a properly drafted social media policy which considers the severity of different actions. It is also very important for employers to consider whether a punishment other than dismissal is more reasonable, such as a final written warning.
The Google case should stand as a warning to employers. Once a worker is dismissed the situation goes beyond the organisation’s control. This case, rather ironically highlights that one of the biggest threats to businesses in the age of social media is not always the risk of an employment tribunal claim, but the adverse publicity it attracts when things go wrong.
Liz Timmins, Associate, Doyle Clayton:
Google should be justified in dismissing their employee whose internal memo stated: "we need to stop assuming that gender gaps imply sexism." Although the employee is right that a gender gap is not, in itself, evidence that women are being discriminated against in the workplace, his memo went further, arguing that the abilities of men and women differ in part due to biological causes. The employee seems to be suggesting that women may be incapable of doing certain jobs such as tech and leadership roles. Such stereotypical assumptions are a significant factor in the under-representation of women in some roles and are entirely unacceptable in the workplace. Indeed, the Equality and Human Right Commission’s Code of Practice makes it clear that stereotypical assumptions must be avoided during recruitment and promotion exercises. The memo will therefore be a huge concern for Google, particularly as colleagues who are offended by it could claim harassment and Google could be held liable unless they can show they took reasonable steps to prevent harassment occurring. It is therefore not difficult to see why Google considered that it was necessary to dismiss the employee concerned.
We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!
Human-firearm unions are now legal in the Lone Star State, as long as the couple isn't related by blood.
DLA Piper has successfully defended the city of St Petersburg, Rossiya Airlines and Pulkovo Airport (all Russia) in an almost decade-long multi-jurisdictional investment dispute.
In 2008 the US entrepreneur Mr Carl A. Sax, represented by Amsterdam & Partners, brought a claim against the city of St Petersburg, Rossiya Airlines and Pulkovo Airport (co-respondents) in an ad hoc arbitration under UNCITRAL Rules in Stockholm, alleging breaches of the investment contract regarding the development of a new international passenger terminal at Pulkovo International Airport in St Petersburg back in the 1990s. The claims ultimately totalled US$460 million.
Mr Sax was unsuccessful in his attempts to obtain interim measures of protection in arbitration and in state courts in Russia. The three-person arbitral tribunal, chaired by honorary arbitrator Dr Marc Blessing, to the full satisfaction of the co-respondents rejected all of Mr Sax's claims and ordered compensation of all the respondents' legal costs.
In 2017 the Svea Court of Appeal, Stockholm, rejected (with no right to appeal) Mr Sax’s challenge of the arbitral award led by Norburg & Scherp and ordered Mr Sax to pay 70 percent of the respondents' bill.
Natalia Nazarova, Deputy Head of the Legal Department at St Petersburg Government's Committee for Property Relations, said: "We are extremely happy with the outcome of the arbitration and DLA Piper's support. The arbitration was won in its entirety and we were awarded the reimbursement of our expenses in full. The success in the Svea Court of Appeal in 2017 has consolidated our achievement."
Denis Sosedkin, Managing Partner of DLA Piper in St Petersburg, remarked: "We are absolutely delighted about this comprehensive victory. This was a truly complex, multi-faceted case, involving proceedings both in arbitration and in state courts in Sweden and Russia."
The co-respondents were represented primarily by DLA Piper's arbitration team in St Petersburg. However, the case also required the heavy involvement of colleagues based in the UK and Sweden.
The full arbitration team comprised:
(Source: DLA Piper)
