Averta expands team


Midlands based, specialist employment law firm, Averta Employment Lawyers has expanded its team.

Jonathan Lewis and Izzy Canning complete Averta team

New paralegal, Izzy Canning, joins the team having completed a graduate diploma in Law at BPP University, Birmingham with a commendation.  In addition, solicitor Jonathan Lewis is  a fully-fledged member of the team, having joined in 2012 as a paralegal and now completed his training.

Izzy Canning has 2:1 degree in Medieval English and History from the University of Birmingham in 2007, plus experience in academic publishing.  She has also volunteered with the Samaritans and the Personal Support Unit.

Jonathon Lewis graduated with a 2:1 law degree from Swansea University in 2009 following which he spent time travelling through South East Asia, Australia and New Zealand. He then returned to undertake the Legal Practice Course at the Birmingham College of Law, finishing the course in 2012.  He completed his training contract in the Autumn of 2015.

Alan Jones, director at Averta said:

“We’re a niche firm and our reputation is based on excellent legal advice and client service which we can only provide with the right people.  I’m delighted we’ve been able to attract young ambitious people like Jon and Izzy.”

“Jon’s been with us for a few years as a paralegal and we’re delighted that he’s chosen to stay on with us as a qualified lawyer. .  Izzy is also a great addition to the team, offering both commercial acumen and excellent customer service skills.”


Picture caption – from left to right, David Sykes, Izzy Canning, Alan Jones, Jonathan Lewis, Rachel Broughton


Suzanne Orsler, SOPR, t 07813 131350, e Suzanne@sopr.co

Alan Jones, Averta Employment Lawyers, t 07970 495733, jonesa@averta.com

Note to editors:

Averta Employment Lawyers is a leading employment law firm. Averta’s solicitors are specialists in matters affecting directors, senior executives, senior employees, managers, consultants and professionals.

Chelsea in the news for the wrong reasons…

Marianne Browne from Averta Employment Lawyers has a look at Eva Carneiro’s constructive dismissal claim.

Football doesn’t normally interest me, but I am waiting with anticipation to hear the outcome of Eva Carneiro’s claims of constructive dismissal and breach of contract against Chelsea Football Club as well as her claim of discrimination against Jose Mourinho.

On 8 August, Carneiro and head physio, Jon Fearn, received public criticism from Mourinho for entering the pitch to treat a Chelsea football player during a game against West Bromwich Albion. Mourinho described the pair as “impulsive” and “naïve”. Carneiro then lost her place on the bench and was not allowed to attend matches or training sessions, so was effectively demoted.

We do not know all the facts relating to the termination of Carneiro’s employment but it is understood that she resigned from the Club and is now claiming constructive dismissal, breach of contract and discrimination.

With regard to a claim for constructive dismissal, Carneiro will need to establish that her employer’s conduct represented a fundamental breach of contract and that because of that breach, she was entitled to resign. In this case a demotion or suspension without justification would be considered a fundamental breach of contract. Carneiro might also point to the fact that there is no longer any trust and confidence between the parties. There is an implied term of trust and confidence in every contract of employment and, if this is breached, there may be grounds to claim constructive dismissal.

As a doctor, if Carneiro had not treated the football player she would have been in breach of the General Medical Counsel’s guidelines on the treatment of patients.

So it follows, that she was simply fulfilling her ethical and professional obligations, as well as, presumably, her contractual obligations. From the standpoint that Carneiro did nothing wrong, then in publicly criticising and demoting her, I would have thought an employment tribunal will find that she was constructively dismissed.

However, as I said in the previous paragraph, we do not have all the facts relating to her resignation or what happened on and after 8 August. We do not know what her contractual obligations are to the Club. So we don’t know all the facts that an employment tribunal will need to consider when determining whether or not she was constructively dismissed or the Club breached her contract.

The hearing yesterday was a preliminary hearing heard in private at London South Employment Tribunal. Preliminary hearings will typically be used to clarify the issues that the tribunal will need to determine at the final hearing; determine the steps the parties will need to take to prepare the claim for the final hearing; issue case management orders requiring certain steps to be undertaken and explore the possibility of settlement or alternative dispute resolution between the parties. It is normal that preliminary hearings are held in private, unless the hearing involves the judge determining any preliminary issues or considering whether the claim should be struck out.

Although we only have media speculation to rely on at the moment, it will be interesting to see how the case develops.

Some thoughts about the NHS Seven day service debate….

In a speech about the future of the NHS earlier this year, Health Secretary, Jeremy Hunt claimed that a ‘Monday to Friday’ culture existed within the NHS and warned that flatline contracts would be altered to allow seven-day services. To say the least, this provoked a strong reaction from NHS staff, particularly doctors and consultants who resented that implication that weekend care was substandard. Rather than explore the implications of the potential contract changes from an employment point of view here, we’d just like to air the views of a junior doctor who is married to one of our members of staff. As with all media panics, there is more than one point of view, but we thought this explained some of the complexity of what goes on, ‘at the coalface’ and brings some insight to the debate:

Dear Jeremy,

I am a junior doctor at one of the “Keogh” hospitals you have discussed in your most recent speech and, despite spending eight of my first 12 months as a doctor at one of these ‘failing’ hospitals, I have found it to be an incredible experience. Working here has actually inspired me to commit myself to hospital medicine for the foreseeable future. I love hospital medicine but, like every other doctor from first year to consultant; I hate it when I cannot do my best for my patients.

It goes without saying that I understand the need to reduce the 6,000 unnecessary deaths a year that occur within the NHS and I want to be a part of the solution. What I don’t need, and what the NHS doesn’t need, is a ‘quick fix’ of more consultants in hospital on a weekend. What we need instead is more of every member of the hospital team, because as clichéd as it sounds everyone within the health care profession has a role to play in the patients’ journey.

The “help” these patients need is from every single member of the inspiring and powerful team that I am so proud to be one very small part of. Every day of the week we need doctors, physician associates, nurses, nursing assistants, physios, occupational therapists, pharmacists, radiographers, and lab technicians. The list goes on. Just as important, but often unfairly overlooked, are the support staff that allow us the medical professionals to work; porters, cleaners, and catering staff, to name a few, are equally vital. Patients, families, and staff all need somewhere to get a cup of tea and a sandwich – do you know how many hospital canteens open at weekends Jeremy? Not enough.

You will struggle to find a doctor that does not agree with you when you say patients do not choose when they get sick, or sad, or scared, but the “help” they need rarely comes in the form of the hospital consultant; the group you want to force in to signing a seven day working week contract and by taking on the BMA “road block”.

At the weekend it is not the lack of consultant that makes a difference to these patients’ outcomes. At the hospital I work, the way you are admitted is the same seven days a week; three junior doctors admit patients who are then seen by a consultant within the national target of 12 hours. It is what happens after this admission process where the problems lie.

Take for example a patient who has had heart trouble in the past and has presented with a similar picture this time. We have assessed him and done our blood tests. Then:

Test results take longer to return because the lab runs on a skeleton staff over the weekend.

He needs a cardiac monitor but less porters and stores support staff mean it takes longer to find so we don’t see when his heart goes into an abnormal rhythm.

He has specialist medication that he didn’t bring in from home in the rush but because the pharmacy shuts at lunchtime, that will have to wait until the morning.

Fewer radiographers mean the chest x-ray we asked for takes hours so we don’t know for longer that his lungs are also sick.

He is a bit unsteady on his feet now and ideally needs a physiotherapy assessment before the nurses get him out and about on the ward but because they are busy doing a discharge assessment he doesn’t get one so adds a fall to his problem list.

His elderly wife came with him in the ambulance and missed dinner, but the canteen is closed so she is on a bench in the corridor with tea and biscuits provided by the nursing team.

These are the causes of the unnecessary deaths and discontent in the NHS, not the lack of consultants in the hospital. These are the unnecessary and avoidable deaths that the NHS team can see happening but are powerless to stop.

I hope you realize Jeremy that even if you manage to navigate the “roadblock to reform” that you suggest the doctors’ union, the British Medical Association (“BMA”), has thrown up, then you will still need to go to battle with the unions of each and every one of the other varied and wonderful professions that make up hospital medicine before we can truly have a seven day NHS.

The NHS is often criticised for protecting its own, but if you work as closely together and see some of the things that we see on a daily basis you would understand why. Without that full team we cannot and will not function. So instead of criticizing our lack of dedication and pride in our vocation, which is still strong, instead help us celebrate it. Work together with us to recruit more caring and inspirational people. Support us as we dedicate our lives to the profession, changing our personal plans and goals to fit around making other peoples lives better. Promote us so that people want to be part of our team, rather than break our already crumbling morale and lose even more of our NHS family.

Yours sincerely

A Junior Doctor

Chimps in the Employment Tribunal?

Chimps in the Employment Tribunal? Orang-utans in the Board room? A case for Employment Tribunal reform? Rachel Broughton, discusses rights for primates:

Chimpanzees in laboratories and zoos may have the right to claim a breach of the minimum wage and working time regulations; they receive no pay, do not have regular rest breaks and are not given the statutory minimum holidays. It’s a disgrace and employment law is not working for them.

If the chimps are mistreated they may have the right (through a representative of course) to issue a claim in the employment tribunal but how would they afford the issue fee, the remission system is not yet set up for claims from primates?

Well, perhaps we are not quite there yet; however looking at way the law is developing in terms of grappling with the rights of “non-human persons” it’s perhaps this is not such a crazy idea?

An Argentinian court decided that a Sumatran orang-utan called Sandra, should have the legal status of a “non-human person” and thus have comparable rights – BBC news Dec 2014. It was argued by the Association of Professional Lawyers for Animal Rights that Sandra was intelligent and self-aware enough to understand

and be affected by the conditions at the zoo where she was being held captive. Sandra had been born at the zoo in Berlin 30 years ago and for 20 years has lived at a zoo in Buenos Aires. The court granted a writ of habeas corpus to Sandra and it held it was necessary to decide whether Sandra was being detained unlawfully.

Is man unique?

Sounds crazy? Well, when we ask ourselves what makes man so unique that he or she should have rights and protections but a fellow mammal who is also aware, emotionally complex and intelligent does not, the debate is not as straight forward as you may at first think.

There are fascinating philosophical and scientific debates over how we define our humanity and it is not only in Argentina that the courts are entertaining legal arguments over the definition of “non-human persons”. Just over the pond, a Judge in the USA, in April of this year, granted two chimpanzees a petition to argue for a writ of habeas corpus. Although the writ was not granted, the attorneys for the chimps were given the chance to at least argue the case, which they maintain implies that the chimps were “persons” in a legal context, or, at least it was acknowledged by the court, could be.

A set of rights

The European Convention on Human Rights is an international human treaty giving all “people”, a set of rights. The ECHR is divided into articles such as Article 4 which includes the right that no one shall be held in slavery or servitude, Article 3 deals with the Prohibition on torture. The Human Rights Act 1998 made the ECHR part of our UK domestic law and our laws, including employment laws should be read in a way to ensure there are compatible with it.

Children can take cases to a court in England if their rights have been infringed, however, on the questions of morality and ethics, Peter Singer a renown “thinker” for example argues that the normal reasons against killing persons (painlessly) do not apply to infants because a human infant has no inherent value. What makes killing morally wrong (he argues) is not that the entity that is killed is a human being but that such an entity is a person, human or otherwise.

How to be a person…

To be a person an entity must be rational, self- conscious, aware of its own existence over time, able to communicate and so on. Infants, like foetuses do not have such capabilities (until they reach a certain age) and so are not “persons”, he argues, although they are human. If we scoff at this, then consider what is the difference between an early foetus and a baby unaware of its own existence- why is it morally permissible to terminate one but not the other if it involves no distress or pain?

Are we not trying to find a point at which a human being becomes a person? I make no moral argument either way, I only seek to point out the difficulties in the moral distinctions which provide the architecture for our laws.

Peter Singer’s arguments may seem unpalatable but it does give rise to fascinating debates over the rights we afford to what may be human “non-persons” who cannot communicate and are not even aware of their own existence, over the rights we are willing to give to mammals who are self-aware, intelligent and able to communicate, but are not human.

Taking chimps into employment tribunal

Perhaps seeing chimps in the employment tribunal may be a step too far, although it would perhaps provide another interesting argument for reforming the tribunal fee system ; you can’t expect a chimp to pay to issue a claim when he doesn’t have the right to the minimum wage (let alone a living wage).

How much do you earn? Not as much as some!

What do Floyd Mayweather, Cristiano Ronaldo and LeBron James have in common?

Apart from being the three highest paid sportsmen on the planet, their mammoth salary seem like peanuts compared to Gaius Appuleius Diocles, the slave-turned-chariot racer whose lifetimes earning were the equivalent of a staggering £9.42 billion, according to researchers.

This seems even more incredible when you consider that the illiterate Diocles earned roughly two and a half times per year more than than Mayweather, Ronaldo and James’ have earned in 2014 combined. Mayweather, the highest earning sportman today, earned a measly £65 million in 2014, in comparison to Diocles’ £396 million each year.

Not even Ronaldo’s £49.6 million in 2014 compares to Diocles.

During his career, the Ancient Roman charioteer earned the vast majority of his wealth through prize money, contrasting with most modern sportsmen who earn their mega-bucks through endorsement deals and sponsorship in addition to their direct earnings from sport. Tiger Woods, for example, earns £3.8 million from golf, but £34 million from all of his endorsements combined. A similar story is also true of Roger Federer, with the Swiss only earning £2.6 million through tennis, compared to his £32 million he earns from his various endorsements.

Professor Peter Stuck, the Associate Professor of Classical Studies at the University of Pennsylvania, said:

“The modern sporting spectacles we manage to stage—and on occasion be appalled by—pale by comparison to the common entertainments of Rome.”

The 24 years of winning earned Diocles the handsome sum of 35,863,120 sesterces in prize money – nearly £10 billion by today’s standards. For each race, his total take home pay was the equivalent of five times the highest earning provincial governors, enough to provide grain for the entire city of Rome for a year, or to pay for all of the ordinary soldiers of the Roman army at the height of its powers for two and a half months.

Despite the staggering amount earned by Diocles, this might be a fair reward when you consider the high risks of a grizzly death and a violent bloodbath as the competitors turn on each other in the aggressive seven-lap races. Those that managed to finish in the top three, despite the treacherous conditions, took home the prizes.

Sandeep Cheryian

ACAS Early Conciliation: What a Difference a Day Makes

Anne Mannix of Averta Employment Lawyers discusses the importance of getting your timing right when contemplating early conciliation.

Since 6 May, new rules have made it obligatory for would be claimants to contact Acas to attempt early conciliation of most tribunal claims before such a claim (e.g. unfair dismissal, discrimination) can be made to an employment tribunal.

So now, if you want to issue proceedings in the employment tribunal, you must now contact Acas first, (whether by telephone or on a specific form) and provide some information. Once you have made contact, an Acas officer will be in touch and take down information, including whether you want to try to conciliate with the employer. Even if you don’t want to participate in conciliation through Acas, you still have to make contact with Acas, as they issue a certificate (EC Certificate); which contains a unique reference number that will need to include this on the application to the tribunal.

For senior executives, Tribunals may not be the obvious place to argue for compensation (as the limits are quite low) but the threat of a tribunal claim is a useful tactic in the lawyer’s armoury. With that in mind, Acas may need to be involved (after speaking to your lawyer first) in order to give any threats of litigation some credibility.

If you want to try early conciliation, your information will be sent to a conciliation officer who will be in contact. With your agreement, Acas will also be in contact with the employer and the Acas officer will attempt to get a settlement within a period of one calendar month.

This period runs from the date on which you first get in touch with Acas, but can be extended by up to two weeks. If conciliation fails then the EC Certificate is issued. So all this leaves us with some timing considerations such as:

How does this fit in with the long established time limit of 3 months (less one day) for bringing claims to the employment tribunal?

What if you don’t contact Acas until the day before a claims needs to be submitted? Will you run out of time?

The rules work so that there is never less than a month after receiving the EC Certificate to bring your tribunal claim. This should be enough time to get the claim drafted and submitted. But what does “month” mean in this context? Curiously, and owing to a difference in the wording, the approach to calculation is by reference to the corresponding date (i.e., not less one day). Or is it?

Our advice is until the lawyers have finished battling this one out, the safest approach is not to leave contacting Acas to the last minute, thereby avoiding disputes over whether a claim is in time or not. To be even safer, take good legal advice at the earliest opportunity.

For further guidance on early conciliation and employment tribunals please call Anne Mannix on 0870 421 1952

How to watch all of The Rugby World Cup – without getting fired….

Marianne Browne at Averta, has a few words of advice for anyone that doesn't want to miss watching a World Cup game:

The Rugby World Cup starts today, with England playing Fiji at Twickenham.  Whilst many people will be content with catching the big games and highlight, there are many 'die-hard' rugby fans up and down the country will no doubt be making plans to watch it (or as much of it as they can).

A lot of matches are scheduled to take place at the weekend however, some will take place during the week and start at 2:30pm.  What can you do if you’re at work and want to watch it all?

If you want to take time off work around the time of matches, you will need to book annual leave in the normal way, as set out in your employer’s holiday handbook or policy.  If you do not want to or cannot take time off to watch the games, you might be permitted by your employer to watch some TV or internet coverage while at work or you might even be able to discuss some sort of temporary flexible working arrangement.

“Pulling a sicky” to watch a game is not a sensible idea.  Your employer will no doubt be monitoring sickness absence during the World Cup period and any unauthorised absence or patterns in absence could result in formal proceedings.

It might be worth talking to your employer to see if you can agree a more flexible working day, when you can come in a little later or finish earlier, and when this time can be made up.  It might also be possible to listen or watch some events by taking your lunch hour at a different time to normal or during an agreed scheduled break.

It is important that you check with your employer regarding the use of the internet to watch matches.  They may well have an internet policy that makes it clear whether you are permitted to watch live coverage on your computer.  If your employer is monitoring your internet usage, the data protection regulations require them to make it clear that it’s happening to all employees.

To plan the rest of this month and October, go to http://www.rugbyworldcup.com/


Photography - England vs. Scotland courtesy of Steve Nottingham





Attractive proposition

This week has seen a media storm as a female barrister, Charlotte Proudman, objected to remarks an older male solicitor made to her on the business networking social media site LinkedIn.  Here one of  Averta’s solicitors  Marianne Browne, comments on the issue:

Mr Carter-Silk’s message to Charlotte Proudman is arguably cringe-worthy and ill-judged.  Perhaps, given his obvious experience, he should have known better.  I do not condone his comments or think that it was appropriate but I do find it difficult to believe that Charlotte Proudman should really be that outraged by his remarks.  Her response in publicly naming and shaming him is over the top.

I note that it was Ms Proudman who reached out to Mr Carter-Silk, whom she did not know, on LinkedIn and therefore initiated the contact.  It was not like Mr Carter-Silk asked to connect with her just because he liked the look of her.  He replied to accept her connection request and included a message when he did so.  As I said, his message is cringe-worthy which even he appears to accept as he says “I appreciate that this is probably horrendously politically incorrect” and describes her picture as “stunning” and the “best” he has seen on LinkedIn.  Is that really so demeaning?  Even if she finds it demeaning, I struggle to see how it constitutes “social policing, gender control and a hidden form of social violence”, some of which comments Ms Proudman repeated on Radio 5 live today.  It was a compliment sent to her via social media commenting on the photograph she had chosen to use to represent herself.  There’s no denying she is a very attractive woman (I assume I am allowed to say that because I am female and therefore have no hidden sexist agenda), and no doubt that the quality of the photography is rather better than the average Linkedin picture.

I disagree that his comments represent an eroticisation of women or that they silence the professional attributes of her or women at large.  A woman can be professional and attractive.  Indicating that you find someone attractive does not belittle or diminish their professional attributes.  It certainly does not constitute sex discrimination or come close to any sort of sexual crime.

Ms Proudman would have been justified in deleting him from her LinkedIn network and letting him know, as she did, that she did not appreciate his message.  However by making such a huge and very public fuss over what was quite obviously a well-meaning compliment comes across as a bit self-indulgent, does it not?

Jonathan Lewis considers whether proposals to limit strike action are detrimental to workers.

There have been more than a few newspaper articles about proposed changes to the rules on strike action. To be honest the most entertaining bits were the comments sections. Nothing against the authors of the articles, but the readers have not held back their views, grabbing the opportunity to enter into an ideological scrap with both hands. Politics aside though, what do the proposed changes really mean and how are they likely to affect “the people”?

The Trade Union Bill makes a number of proposals that are controversial, going by the number of online comments. The most publicised proposals relate to new thresholds that will have to be met for strike action to be lawful: The first is that 50% of those entitled to vote in any strike ballot must turn out. The second threshold, which only affects those in core public services such as education and health, requires 40% of those entitled to vote (not those who turn out) to vote in favour of industrial action.

The first threshold appears largely uncontroversial, especially given the current mood following the recent rail strikes. In truth, these strikes would probably have happened regardless of the 50% threshold. It is reported that the unions had turnout well above this limit. The more controversial of the two thresholds is undoubtedly the second. This is not necessarily because it is wrong to put an additional threshold on key public services. There should be a higher hurdle in place given the more significant consequences of a strike in those sectors. However, many commentators have simply taken the view that 40% is too high a threshold. I do not agree with this. Having spoken to a friend of mine, who is a teacher and would therefore be impacted by the proposals, he was of the view that these thresholds would positively encourage him to vote. After all, every vote would really matter. If every union member employed in core public services takes this view then there is very little for the unions to worry about. Their turnout would increase and the unions would only have to worry about convincing 40% of their members that a strike was necessary. If it truly was then this should not be a problem.

Some argue that the proposals act as a bar on striking, an attack on the unions. However they may actually provide a better opportunity for unions to engage with their members and encourage debate. It might mean that strikes become less frequent but again, this may be advantageous to those unions who have lacked public support in their most recent outings. The less frequent the strikes the more significant the impact. Only time will reveal the consequences of such proposed legislation however it may be that these proposals are not as detrimental to workers as some would have you believe.

Lionesses' pride unrewarded!

We should really be used to it by now; the hype, the adulation, the inevitable disappointment. Baddiel and Skinner remain proven wrong; football is not coming home. That being said the Lionesses did the country proud in Canada and have hopefully inspired a number of youngsters to take up football in the hope of replicating their new found idols and making it to the international scene. As the media quickly pointed out, no England team had made it as far in a football world cup since the team of 1990 (yes, the one where Gazza cried) and against countries where women’s football has enjoyed enormous popularity (such as Japan, U.S.A, and Germany) that is no mean feat.

Although comparisons between the Lionesses and the 1990 Lions have been drawn, there remains one huge difference between the two teams; the salaries. However, not to single out football for criticism, many other sports pay men and women vastly different sums. For example, a female winning the LPGA US Open would be rewarded with the sum of around £500,000 whilst their male counterpart winning the PGA equivalent would receive double that. Some sports are leading the way, with tennis being a prime example; from 2007 men and women have received equal prize money at Wimbledon.

Of course, the reason for such a pay gap in sport is primarily commercial. You only have to look at how much BT was willing to pay to show the champion’s league as an illustrator of how much value the broadcasters put on male sports. As interest in female sports grows this should change and in turn salaries/prize money increase (although it is doubtful that they will increase at such a pace as to ever match men’s salaries, certainly in football anyway). However, outside of sport there remains a gender pay gap in various industries and at various levels. At boardroom level in particular there is often (albeit less than in the past) a disparity between male and female directors’ remuneration packages. The Government has sought to address equal pay by activating Section 78 of the Equality Act 2010, with regulations regarding the reporting of gender pay statistics to be produced by early 2016. Such reporting will be limited to employers with over 250 employees however it is yet to be seen how the figures would be produced or on what information they would rely (i.e. what level of employee would be included in any one grouping? Would the statistics just take the mean of the whole workforce?).

Outside of sport the gender pay gap does appear to be decreasing. In sport there remains a huge divide and it may be that Laura Bassett now has to appear in a commercial, à la Gareth Southgate, in order to receive a financial gain in any way similar to her male counterparts.