Taking on the job

Redundancies are on the up again, yet specialist employment lawyers are not harvesting the benefits.

Even so, as Scott Neilson reports, new employee rights have enhanced the importance of this practice area

These days, barely a week goes by without the announcement of more UK job losses.

In the past few weeks alone, struggling steel company Corus has signalled its need to cut 1,150 jobs, while cider manufacturer Bulmers has announced plans to lay off 250 of its employees.

Nor have recent redundancies been confined to Britain's troubled manufacturing sector.

As the current economic downturn bites harder, this month alone saw jobs disappear from entities as diverse as the English National Opera and City solicitors' firm Denton Wilde Sapte.

All of this should, on paper, spell a boom time for employment lawyers, who work within an area of law that has traditionally been defined as counter-cyclical.

But to see employment law as solely dependent on the boom- and-bust cycle is nowadays a simplification, according to Salans' London-based head of employment, Barry Mordsley, who is also a part-time employment tribunal chairman.

'Employment law is a mixed bag.

It's difficult to generalise about how the sector is doing because there are so many strands to it, such as contentious and non-contentious,' he says.

'Overall, there has been a decline in work for employment lawyers in general, because of the corporate downturn,' he adds.

William Dawson, head of employment at City firm Simmons & Simmons, agrees.

'Nowadays, companies often have a specialist in-house lawyer to handle basic employment law issues.

That's meant less bread-and-butter work for external advisers,' Mr Dawson says.

'Employment law is tough all round.

The market is coming down from the boom times and I don't think employment practices are expanding in the City at the moment,' he says.

But while employment lawyers may not be as busy as they would like, the practice area itself has steadily become an increasingly important one - for employers and law firms alike.

Since the late 1990s, an almost relentless flow of domestic and EU employment-related legislation has confirmed labour law as a crucial specialist area in its own right.

Last year's Employment Relations Act, which took effect only last April, introduced no fewer than 42 new or improved employee rights.

These included the return of compulsory trade union recognition, greater parental leave and unfair dismissal rights.

Other major initiatives included the introduction of a national minimum wage and the Public Interest Disclosure Act 1999 that protects whistle-blowers.

'The government introduced a major employment act in its first term in office,' says Julian Hemming, the Employment Lawyers Association (ELA) chairman and head of employment at Bristol-based Osborne Clarke.

'Then they passed last year's Act, which is being rolled out in stages.

And at the same time there has been, and still is, a series of EU directives to deal with.

The combination of the two makes it a particularly busy time for employment lawyers,' Mr Hemming says.

Isobel Manley, chairwoman of the Law Society's employment law committee and a part-time employment tribunal chairwoman, says: 'In terms of its importance, employment law is on the rise, as it has been for the past few years.

I've been practising employment law for 17 years, and there's a lot more of us around now than there was then.

The law has grown considerably more complex - and continues to do so.'

So, is the government simply rolling out a domestic legislative agenda in tune with its working-class origins? Not really, according to Mr Hemming.

'This government replaced a Tory government that was very anti-trade union and wanted a very minimalist approach to legislation.

Whenever you have a change of government, after a long time in office, you often get movement in employment law, because it's a fundamental factor in the economy,' he says.

'However, this government did make it very clear, right from the outset, that it was welcoming social legislation from Europe.

Furthermore, in the pipeline we've also got incoming changes relating to sexual, religious and age discrimination, and new regulations in relation to domestic workers, councils and employee consultation for large employers.' He adds: 'Then there are incoming changes to the law on data protection for employees, and changes to the rules governing the transfer of undertakings when companies buy and sell businesses.'

The government is also in the process of reforming the way that tribunals work.

Mr Mordsley says that much of this is aimed at 'weeding out the silly arguments on both sides, before the tribunal begins.

There are also recommendations on better use of IT, as well as other issues.

But we'll have to wait to see whether the government is going to put some money in, to put its money where its mouth is', he says.

This constant legislative dynamism has served to place employment lawyers at the heart of British business.

The situation is a far cry from the days when they were seen merely as corporate support, 'or another division of a firm's litigation department,' Mr Dawson says.

'In the old days, employment lawyers were brought in at the last moment.

Now you can't manage a complicated M&A transaction that doesn't deal with employment issues right at the start.

Deals have been undone on the continent because of a failure to comply,' he adds.

The new laws have led to a stark change in attitudes among employers, Mr Dawson says.

'In the past, clients would come in and ask you how to avoid consultation with their employees.

Now they ask how they can comply with the rules.

The balance of power has swung completely and British management has been forced to raise its game considerably.'

Mr Mordsley has worked as an employment lawyer longer than most, having practised in the field since 1972.

He too has seen some changes.

'Back then, no one did employment law, except for a few firms involved with the unions.

Then unfair dismissal law was introduced in 1972 and we've had an ongoing growth in employment law since then.

But it probably wasn't until the late 1980s or early 1990s that it began to mushroom, particularly with the European Community directives.'

The global marketplace - and the subsequent increased mobility of labour that it has brought - means that employment law has also become a lot more international, according to City firm Lewis Silkin's employment partner, Gareth Brahams.

'Globalisation has led to the internationalisation of the labour market, which in turn has resulted in the formation of international employment law organisations such as Ius Laboris, of which Lewis Silkin is the sole UK member,' Mr Brahams says.

Back in Britain, the rise to prominence of employment law has also been reflected in the steady growth of the ELA, which has expanded to 3,000 members, after humble beginnings around a kitchen table in London in 1992.

Yet despite the influx of complex employment legislation, the sector remains a rewarding area of law for practitioners.

Henry Scrope is the co-author of the Employment Law Handbook and founder of Emplaw, a Web site dedicated to providing up-to-date information on British employment law (www.emplaw.co.uk).

He says that a combination of 'human problems in a commercial context' is the most interesting aspect of advising on employment law.

Ms Manley says: 'Work is a very important area of peoples' lives, and work-based relationships tend to vary a great deal.

It's endlessly fascinating to find out what people do at work - and how they relate to each other while there.'

But for Mr Brahams it is simply the variety of work on offer.

'Most lawyers do either contentious or non-contentious work.

But as an employment lawyer, you act not only as a commercial adviser and do drafting on transactions, but you also have the chance to get involved with damages claims and injunctions in the High Court.

'Furthermore, employment tribunal work gives you the opportunity to do your own advocacy,' he says.

'Employment law is also a very political area, and one with an EU element, so it helps to have an interest in politics.' At least - with their range of abilities - employment lawyers should be safe from being made redundant in these perilous times.

Scott Neilson is a freelance journalist