The Lawyer Awards employment special report: Working models
28 May 2013 | By Joanne Harris
7 May 2013
24 March 2014
14 June 2013
3 June 2013
12 September 2013
This year’s Lawyer Awards employment entries show just how wide-ranging this sector is
The entries for this year’s Employment Team of the Year at The Lawyer Awards were of incredible quality and variety, and the shortlisted firms have undertaken a wide range of cases and work.
While the title bestowed on the winner recognises them as the outstanding employment team of a single year, for several shortlisted firms, 2012 was the culmination of many years’ hard toil. For others, work had to be carried out swiftly to a tight deadline.
The range of work highlights the spectrum of issues in the employment law and pensions sphere right now. From restructuring pension schemes to payoffs by banks to bankers and one of the biggest and most significant equal pay claims to have been fought, the shortlist below demonstrates how employment law can be used to make a positive impact on the lives of individuals.
Many news stories have covered fights between unions and employers. Less fuss is made when the two unite on an issue, as was the case with General Motors and trade union Unite last year.
Baker & McKenzie was brought in to advise General Motors as it negotiated a new collective agreement with Unite on changes to pay and conditions at its Ellesmere Port plant. Although General Motors is a
client of the firm, the work was the first pure employment issue dealt with in the UK. Partner Monica Kurnatowska led a team of three lawyers, with support from restructuring partner Louise Webb.
Kurnatowska says the challenge was to create a deal that was a “living” agreement but also, unusually, legally binding. “There was no template for it, it was entirely starting from scratch,” she says.
The successful conclusion of the agreement and the announcement that the Astra will be built at Ellesmere will provide employment
locally until at least 2020 for nearly 3,000 people, with a knock-on effect of extra work for manufacturers in the UK down the supply chain.
Public transport was a key concern in the run-up to the London 2012 Games, and for Eversheds, this brought about an instruction to help keep the capital’s roads running.
The firm was instructed by 21 London bus operators to challenge strike action brought by union Unite, in connection with a demand for a £500 bonus for members, which the operators refused to pay.
Eversheds coordinated 10 separate injunction applications on behalf of the operators. The first three went to court in late June 2012, just weeks before the Olympics were due to start, and were granted by Mr Justice Supperstone. Following the decision, Unite organised protests and blockades outside depots, leading to partner Marc Meryon having to serve an injunction on the picket line - a first, he says.
The other seven applications were settled outside the court, and the strikes were cancelled.
Meryon explains that the union had been unclear over which members were covered by the strike, enabling the operators to achieve their injunctions.
A team of 10 Eversheds lawyers across four offices, led by Meryon and senior associate Holly Short, worked on the injunctions, with counsel support from Littleton Chambers’ Andrew Stafford QC, Andrew Clarke QC and Craig Rajpoul and Devereux Chambers’ Andrew Burns.
When Société Générale investment banker Raphael Geys was dismissed in 2007, he turned to Fox Williams, his legal advisers since 1998, to fight his case. Last year, in the Supreme Court, Geys finally succeeded in establishing his right to a €12.5m (£10.7m) termination payment with a 4:1 majority upholding his appeal.
Fox Williams partner Tom Custance, aided by associate Evie Meleagros, handled the case alongside One Essex Court counsel David Cavender QC and Abra Bompas. Custance discounted his hourly rate to deal with the case and Cavender agreed to hold his fees at a senior junior level after taking silk in 2010.
The case establishes that a repudiatory breach of an employment contract entitles the innocent party to choose whether to accept the breach or to keep the contract running. In Geys’ case, there was a dispute over the date of his dismissal. Société Générale said it was in November or December 2007, the latter being the date when a termination payment was paid into Geys’ account. He said it was in January 2008, when he was informed of his dismissal. The fact he did not find out until 2008 meant that under his contract, he was entitled to a payment that was almost €2m higher.
Geys won his case at the High Court but lost on two counts at the Court of Appeal (CoA) when the termination payment was reduced to €10m and the CoA refused his right to bring another claim, in relation to a tax efficiency obligation. Save for Lord Sumption JSC, the Supreme Court upheld the High Court ruling and Geys is now preparing to launch a second claim.
Custance says he was lucky he had a client willing to take the risk of fighting through to the highest court. The case clarifies the law over employment contracts and should encourage employers to fulfil their duties when dismissing employees.
The restructuring of Royal Mail, ahead of its possible privatisation, began under the Labour government. In order to sell a stake in the company, the Government knew it would have to assume most of Royal Mail’s pension assets and liabilities.
Freshfields Bruckhaus Deringer was brought in to advise on the restructure - a process that began under Labour, before being put on hold until the 2010 general election and the Postal Services Act 2011. Pensions partner Charles Magoffin led the work, which saw five lawyers occupied practically full-time. Although other parts of the firm, such as competition, were involved, sorting the pensions issues was paramount.
“The primary focus for the restructuring was to resolve the pensions liabilities against a backdrop where the liability of that pension scheme was out of proportion to the size of the company,” says Magoffin.
Associate Harriet Sayer’s experience of both pension schemes and investment funds was critical in the creation of a new statutory pension scheme for Royal Mail. The options the firm suggested for the new pension scheme included a statutory scheme, which was the model eventually chosen.
Although Royal Mail’s situation is unlikely to be replicated because of its unique nature, Magoffin suggests the Government could use elements of the model in the future.
Leigh Day/Outer Temple Chambers
Working on a no-win no-fee basis, a team led by Leigh Day partner Chris Benson and Outer Temple’s Andrew Short QC secured a landmark win last year for 174 former Birmingham City Council workers when the Supreme Court upheld lower courts’ rulings that equal pay claims can be heard in the courts as well as employment tribunals.
Owing to the six-year time limit for contractual claims in the courts - much longer than the six months given for tribunal claims - this opens the door to thousands more claims by underpaid workers.
But Benson says the process of getting the claim off the ground was not easy. “Virtually everybody told us we didn’t have a cat in hell’s chance of succeeding and it would never work,” he says, describing the process of trying to find counsel willing to support Leigh Day’s reading of the Equal Pay Act 1970.
Short, however, agreed with Benson, and advised that the claim be kept simple to keep it in the courts.
Since the case began, Leigh Day has picked up thousands of other ex-local authority worker claimants in a similar situation. Benson says at last count, the firm was handling cases for 7,500 women. He says the case is also likely to prompt private sector claims, now the right to bring equal pay fights to the High Court has been confirmed.
Benson says this is the biggest case of his career - and rightly so.
Wragge & Co
New pensions legislation was implemented on 1 October 2012, starting a process that will see all employers signing up to automatically enrol their employees in pension schemes. The four biggest supermarkets were the first to have to comply to the new rules. Wragge & Co advised Morrisons, which not only set out to implement the changes but completely reform its pension scheme in the process.
“The deal highlights the importance of knowing your client well and is impressive,” said one judge of the firm’s entry.
Morrisons is a longstanding Wragge client, but this is one of the biggest projects the firm has done for the company.
“It wanted to really encourage people to save some more,” says lead partner Richard Lee. Morrisons chose a ‘cash balance’ model which shares risk between employer and employee.
Up to 15 lawyers were kept busy between January and October last year creating the scheme, but Lee picks out associates Liz Wood and Joanne Tibbott in particular for their leadership roles. Wood project-managed, coordinating elements such as workforce engagement, while Tibbott liaised with trustees and their advisers.
The new scheme was ready by the 1 October deadline and attracted considerable interest from the supermarket’s 131,000 employees. It now has 18,000 members.