Unfair play

The Law Society has yet again found itself in the public eye for all the wrong reasons; this time for unfairly dismissing one of its disabled employees. Should it undergo a wholesale change in culture?

Elizabeth Marshall
Elizabeth Marshall

The Law Society may be the trade union of solicitors, but it has badly let down one of its own, as an employment tribunal found at the end of August.

Its victim was one of the more ­vulnerable of Chancery Lane’s members and employees: 44-year-old solicitor Elizabeth Marshall, who has been battling cerebral palsy throughout her life.

Cerebral palsy is condition caused by oxygen deprivation at birth that results in damage to brain functions controlling balance and coordination. Marshall had to overcome ­hurdles at university and law school that her able-bodied counterparts would not even have noticed. Her father John is also a solicitor, and seeing his daughter triumph over adversity to qualify into the family profession was especially gratifying for them both.

So it will have been bitterly painful that Marshall’s own professional body the Law Society, which acts as the trade union for the 120,000 solicitors in England and Wales, should have treated her so badly as an employee and specifically in relation to the condition she has spent a ­lifetime fighting.

Tribunal victory

Several weeks ago an employment tribunal found that the society had unfairly dismissed Marshall, having discriminated against her on the grounds of disability. Ironically, the Law Society director held chiefly responsible for the discrimination partially travels under the title of diversity champion.

For much of her time at the Law Society, Marshall’s employment seemed to be a success story for both her and the professional body. As a public affairs adviser, from 2000 she worked at the heart of the Chancery Lane hierarchy, briefing the three council office-holders (the president, vice-president and deputy ­vice-president) and the senior bureaucrat, the chief executive, on crucial matters of policy.

Indeed, she loved the job and received high praise from several society presidents for her work, that occasionally included speechwriting duties for top officials. Still, according to Marshall, from around 2006
the atmosphere at Chancery Lane ­gradually turned sour.

Management upheaval

It is no secret that the Law Society has been in an almost perpetual state of, in consultancy-speak, ’change-management’ for the past dozen years. In a bid to modernise, increase its relevance to the practising ­profession and keep Whitehall off its back, Chancery Lane has brought in more management gurus than could be found at a McKinsey’s reunion dinner.

As a by-product it has launched countless programmes, usually with a large dollop of expensive ­technology at their core, with fanciful names and intriguing initials, acronyms and abbreviations. The latest is Blueprint, a £4m scheme designed, in the words of Chancery Lane’s current chief executive Des Hudson, “to make the Law Society’s activity more clearly relevant, more efficient and more valuable to its members.”

Others view it as little more than a cost-cutting exercise with some ­senior casualties, including last year’s ­departures of the commercial ­services director John Tarry and the head of the international department Alison Hook. But there have also been ­middle and lower tier exits, with some happier to leave through Chancery Lane’s heavy doors – clutching ­substantial payouts – than others.

Marshall fell into the latter ­category; now in her mid-40s, age can conspire with disability to make finding another job even more ­difficult, especially in a stagnant economy. She was desperately keen to stay at the Law Society, but, as the ­tribunal evidence suggests, Chancery Lane did not want to keep her on its books and made a botched job of ­getting rid of her.

It has paid a price for doing so: undisclosed “substantial” damages were handed over on the steps of the hearing before the tribunal could award them. And while Marshall remains saddened and angry at her individual treatment, she also voices more profound criticism of the Law Society’s wider management ­techniques and relations between senior management and staff.

Case history

Marshall’s story is a potential microcosm of that alleged wider malaise. On 16 March 2010, she was alerted with only four hours’ notice that her manager Stephen Ward was calling a meeting at which an HR official would be present and to which she was entitled to bring a union ­representative. Within moments of her ­sitting down at that meeting Ward told Marshall: “You will be made redundant.”

“The whole thing took me completely by surprise – I hadn’t seen it coming,” Marshall recalls. “It wasn’t part of a redundancy programme or process and there had been no lead-up to it as far as I was concerned.

“I felt angry at the way it was done and asked why they had given me no idea that the move was in the offing, no indication that it was going to happen. They just said it was ­standard procedure not to advise in advance – simply that people are notified on the day that they are put at risk. They said there would be a month’s consultation process, with the purpose being to try to avoid redundancy, but it seemed to me that there was no genuine attempt to do that.”

Job opportunities

After much haggling Marshall was eventually allowed to apply for two vacancies at the society, one of which – a full-time speechwriter – was ­similar to her existing role. The ­application process involved an assessment test, which is where, in the tribunal’s eyes, the society made its most egregious errors.

That assessment involved applicants having to sift through reams of background documents before writing a draft speech. Marshall had not been alerted in advance to the sheer volume of paperwork involved (cerebral palsy sufferers have ­difficulty in quickly handling ­bundles of documents), the voice-activated ­typing software she requires owing to her disability malfunctioned, as did the computer system as a whole, and she was forced to take the test in a busy and noisy office.

According to the society’s evaluation team, led by diversity champion Ward, Marshall failed that test. But the tribunal was clear in its ruling.

“The respondent should have rerun the exercise seeking the external advice [from disability experts] the claimant had suggested,” it stated. “Doing so would have provided the common sense and sensitivity that lies at the core of the scheme of ­reasonable adjustments.”

Because the society comprehensively failed to make those reasonable adjustments, the tribunal considered “that the dismissal was unfair and the respondent failed in its duty.”

The irony of the society’s diversity champion – whose formal title is director of communications, inclusion and corporate responsibility – being at the core of this failure is not lost on Marshall.

“My view is that [Ward] certainly hasn’t lived up to that billing,” she says. “It’s never a good idea to over-egg the pudding and that’s what the society has done with the role.”

Ward did not return calls for ­comment in relation to this article.

Disability awareness

Part of the championing role is oversight of the Law Society’s diversity and inclusion charter, which was launched two years ago. It has since gathered signatories from across the top tier of the legal profession, including all the magic and silver ­circle practices as well as other ­leading City and national law firms such as Bird & Bird, Farrers, Irwin Mitchell and Withers.

But all that may be nothing more than window-dressing, according to Marshall.

“The Law Society needs to buck up its ideas with regard to how it deals with disability matters ­internally,” she says. “There’s very ­little awareness of the issues.”

And Marshall is also damning with regard to her own circumstances.

“I find it staggering that the Law Society didn’t appear to do anything to limit the damage,” she adds. “They have clearly failed significantly in their duty as an employer to observe the requirements of legislation. They treated me in a discriminatory ­fashion and they also failed to respect me as an employee and as a person – and I think they’ve done that to the wider workforce to an extent.”

Marshall’s wider concerns about Chancery Lane management were well-known, as she was outspoken in her views. Indeed, in a memo ­written to her Unite union representative only a fortnight before she was informed of her imminent ­redundancy she robustly criticised a workplace consultation exercise being conducted by the society’s HR department.

“I have consistently made senior ­management and my directorate and line managers aware of my concerns regarding various employment issues at the Law ­Society and have stressed the need for them to properly address major inadequacies in the running of the Law Society generally and in the operation of the HR department,” she stated in that memo. “This is urgently required if staff are to be confident that their work performance will be properly assessed and that they will be fairly treated by the organisation generally.”

Ward and the society’s wider management say they had no knowledge of ­Marshall’s memo before informing her of the redundancy plans, and that her views had no effect on their ­decision-making. They also told the tribunal that the decision to make Marshall’s role redundant was based on an organisational restructuring and was not a reflection on the ­quality of her work. Nevertheless, Chancery Lane’s handling of the matter still angers Marshall.

“I definitely wanted re-­engagement,” she says. “And that might have been possible if they’d had a sea change of consciousness and thought: ’we’ve really messed up here, let’s do something about this.’ But they showed no commitment to doing that and that put me in a ­position where all I could do was seek compensation.

“I’m genuinely shocked and ­saddened by the way the Law ­Society has dealt with me. I feel that its ­treatment of me, both as a person and an employee, has been ­disrespectful, dishonest and ­blatantly discriminatory. I don’t believe that the Law Society genuinely wanted to re-engage me, but inexplicably it deliberately built up my hopes of returning to its employment before letting me down yet again.”

Need for reformMarshall’s views of wider Chancery Lane management issues remain as trenchant as ever.

“The Law Society is seriously organisationally dysfunctional and in need of urgent radical reform at the most senior level,” she says. “There needs to be a fundamentally positive change to workplace ­practices and procedures and to the culture of the ­organisation to ensure that the Law Society can effectively represent the solicitors’ profession, and also act as a fit and proper employer.

“Currently, there’s a failure to treat staff fairly; there’s no guarantee of people being treated in an ­evenhanded manner, as exhibited in my own case. I wasn’t fairly assessed. Only when these problems are addressed will the Law Society be able to re-establish itself as an ­organisation that properly upholds the principles of justice, service and adherence to the rule of law that are so fundamental to any properly ­functioning legal system, and should guide all lawyers in their work.”

But Marshall is not entirely pessimistic regarding the society’s future.

“Many of the staff there are very capable and do good work,” she says. “And they are remarkably continuing to do good work in what are very difficult circumstances. If there’s going to be a future for the Law ­Society it’ll be because of the quality of its core staff. But there has to be a sea change in attitude at the senior level, a recognition that the culture needs radical change to promote the development of mutual respect between them and the workforce.”

For its part, the Law Society refused to comment further on Marshall’s case or her comments regarding ­management issues at Chancery Lane. And what of her future?

“The reality is that in this very harsh ­market – as it is for everybody – getting another job is going to be difficult,” she says. “And it’s always going to be difficult for me because of my disability. However, I very much enjoy working as a solicitor and I haven’t let this experience sour me to the legal profession and a career in it. I did very much enjoy working at the Law Society and working with my colleagues for a long ­period, and I don’t regret it. Even in the ­latter days I was still enjoying the work, even if I wasn’t enjoying the working ­environment.”

  • Disputes on Chancery lane: a short history

Then …

The Law Society is no stranger to litigation, ­managing over recent years to become embroiled in high-profile court cases, with public ­embarrassment often exacerbated by its role
as the solicitors’ trade union.

Indeed, Chancery Lane-watchers still point to the Kamlesh Bahl saga as perhaps the most traumatic of the lot. The pain was all the more acute because the story had such auspicious beginnings for the society, before turning into a tragedy of epic proportions.

Slightly more than a decade ago Bahl was a relatively young solicitor who appeared to embody everything the society wanted to promote in its portrayal of the modern legal profession. A successful in-house counsel and former head of the Equal Opportunities Commission, as an Asian woman she was set to break the stranglehold of white, middle-aged semi-retired men who had sat conveyor-belt style in the society’s presidential chair.

Bahl had reached the vice-president’s slot when her rise to glory exploded in a spectacular blaze of scandal. An independent inquiry found she had bullied senior and middle-ranking society staff and she was turfed out of the society’s council as a result. Inflamed, she sued Chancery Lane’s then secretary general Jane Betts and president Robert Sayer, levelling damaging accusations of institutional racism.

The original employment tribunal found in her favour, but Chancery Lane held its nerve and appealed. That move was subsequently vindicated and the original ruling overturned, with Bahl being landed with a costs bill thought to scrape the £150,000 mark, which the Law Society was reported to be enforcing, unless, in a somewhat undignified move, a confidentiality deal could be struck.

This public infighting did the Law Society no favours with the profession or the Government. Indeed, many have suggested the Bahl case, which ran for the best part of five years, factored into ministers’ thinking when, several years later, they eagerly grasped hold of proposals to clip the society’s powers by passing its regulatory functions to a quasi-independent body.

… and now

The Bahl trauma may seem like ancient history, but Chancery Lane is still capable today of getting into public rucks and potential law suits.

Last month the owner of controversial website Solicitors from Hell, Rick Kordowski, announced he was preparing to launch a defamation claim against Chancery Lane’s current chief executive Des Hudson. Kordowski, who is himself subject to a group action led by the society regarding allegations of defamation, harassment and breach of the Data Protection Act, claims to be seeking £1m in damages after Hudson allegedly labelled him a “criminal” during a conversation in a BBC studio.

The Law Society has stated that “liability is completely denied and if proceedings are issued we’ll apply to strike them out.” Nonetheless, the tussle is likely to cause grimaces in the wider profession.

  • The law society’s response

The Law Society declined to comment to The Lawyer for this article, but an internal email sent by chief executive Des Hudson in response to the initial 25 September story in The Mail on Sunday addressed the issues raised in the Elizabeth Marshall case:

“Last Sunday The Mail on Sunday published an article that depicted an organisation I simply do not recognise.
The article reports on a tribunal case brought by a former member of staff. Given the commitment I made at our away-day earlier this year I wanted to address these matters.

The ruling in the tribunal turned on case-specific facts: the tribunal was not satisfied that the correct pool of employees at risk due to changes to business processes had been identified; and it was judged that correct adjustments were not made for Miss Marshall when she was undertaking a written exercise as part of
a recruitment process following her redundancy.

Everyone is free to come to their own conclusion, but
I would argue in the strongest terms that discrimination played no role whatsoever in the events.

Moreover, the article’s claim that this had anything to do with a series of emails, or that anyone would seek to sabotage an assessment of a much-liked employee, is completely false and something the Law Society utterly rejects.

Negative headlines come and go, but my greatest concern is how such publicity could understandably affect the way employees feel about their employer. I want to ensure you all that this is a matter I take with the utmost seriousness. The Law Society is not perfect. Like any organisation we make mistakes, and we recognise that we must learn the lessons from the tribunal’s findings.

But let me be clear. Be it race, religion, sexual orientation, age, social background or disability, the Law Society practises what it preaches: equality and diversity must be at the heart of any organisation’s employment practices. Indeed, we not only abide by, but go far beyond, our statutory requirements and responsibilities.

During the all-staff meetings in June the executive management team and I stood up to express our commitment to uphold five shared values and behaviours.

Shared values – the principles we uphold:

1. We keep our promises
2. We care about quality
3. We care about performance
4. We care about people
5. We are one team

Shared behaviours – how we work together:

1. We lead by example
2. We inspire and motivate others
3. We improve ourselves and our organisation continually
4. We make a positive difference
5. We collaborate to do more than we thought possible.

These are principles to which I and the management team are 100 per cent committed. I want to reassure
you all that my door is always open to any employee or employees who would like to discuss these values further in an informal setting. Alternatively, should you wish, you can contact me through the Ask Des email address, via your head of business unit or the HR department.

I take great pride in the work undertaken by the Equality and Diversity [E&D] Committee and everyone involved in the society’s E&D work. There is much to celebrate, and I hope press coverage will shift back from fiction to fact and to what we do best: promoting a more diverse, fair and inclusive profession.”

Jonathan Ames