With technological advancements and the impact of globalisation on business needs leading to a shift in client demands, Michael Burd of Lewis Silkin explores the changing role of the employment lawyer in this evolving environment.
In the late 1980s, in the early days of my career, employment lawyers were a rare breed in the UK and those who specialised in this area worked almost exclusively in private practice in a small number of firms, mostly in London. “Employment departments” as such were largely unheard of; almost all of us were members of either the litigation or corporate commercial departments of our firms.
We pioneers can recall colleagues advising us to avoid such a novel and narrow specialism. Even by the early 1990s, when the UK Employment Lawyers Association was established, it struggled to garner 100 members. The Association now has over 6,000 members. Back then my firm had two employment lawyers. We now have over 100.
As the demand grew for specialist advice, so smaller law firms across the country saw the opportunity to develop specialist practices of their own, and employment lawyers became a feature of most commercial firms.
Even then, employment was a field in which many lawyers dabbled, without it accounting for the majority of their work. This was possible when the body of law affecting employment was much smaller and also less complex. Beginning roughly in the late 1990s (with the advent of a number of EU-inspired laws, particularly in the area of discrimination) there has been a veritable explosion of regulation impacting the workplace, which has made dabbling in the field very much more difficult than it was.
It is interesting to note how this has been mirrored in the corporate environment. Back in the day it was rare to find human resources directors sitting on the main boards of companies. Nowadays, such is the importance (and cost) of workforces, it would be rare to find a corporation of any size where the HR director’s seat is not a board level post.
As employment law practices have grown and employment law has become more complex, a new role has been created in many of the more developed practices: that of professional support or professional development lawyer – an experienced employment practitioner who is no longer client-facing but supports colleagues in ensuring that they keep on top of this rapidly changing area of law. With the welter of case reports, employment legal publications, analyses, blogs and so on now available on the web, having such support has become ever-more essential if one is going to be able to keep abreast of the myriad developments in our field.
More recently, another change has arisen from the accessibility of information on the internet. It has gradually became less tenable to charge for providing some of the basic information employment lawyers have learnt over many years but that is now often publicly available for free. As a result, employment lawyers have needed to evolve to add value beyond being sources of “textbook” information for their clients.
One development resulting from the growing self-consciousness of employment law as a discrete specialist area over recent decades has been the growth of niche practices. This is now a well-established phenomenon in many countries in Europe and throughout North America. Looking wider afield, it is interesting to note that, as markets develop, so does the advent of employment law departments and, latterly, employment-only law firms. For example, historically there have been a significant number of jurisdictions in the Asia-Pacific region where no individual lawyers have spent all of their time doing employment work, as there simply was not sufficient casework or the need for advice to support a full practice. That is now changing, in some cases quite quickly and dramatically, as some of the Asia-Pacific countries bring in new workplace regulation and the compliance requirements of businesses operating there grow. More and more Asia-based law firms are, consequentially, developing employment departments, and it is probably only a matter of time before we begin to see a growth in niche practices in the region.
By the time of the 2008 financial crash, corporate lawyers were beginning to look enviously at their employment law colleagues who may not have enjoyed the boom years quite as much but whose practices were now prospering in more challenging economic times.
Businesses were by now spending more and more on employment advice as employment litigation, large and small, overwhelmed many and compliance became more complicated as new laws were introduced in rapid succession. The logical response for many businesses was to hire their own employment lawyers to work in-house. Nowadays in-house roles represent a significant proportion of the profession and offer an attractive career for many for whom the traditional role of law firm partner is unattractive or not right. It is hard now to remember the days when in-house employment lawyers were very scarce.
In the UK, a perfect storm of such forces from various directions is now causing a significant change in the way employment lawyers operate.
Some of these forces are affecting society as a whole such as globalisation and technological change. Others are affecting the legal profession more broadly, such as increased competition; clients wanting more for less; and lawyers demanding greater flexibility in their working arrangements. Furthermore, the increase in in-house employment lawyers mentioned above, and a dramatic reduction (around 70 per cent) in statutory employment claims resulting from the introduction by the last coalition government of fees to bring claims in employment tribunals, have particularly affected employment law practices across the country.
For the employment lawyer these changes have led to the creation of a number of alternative careers to the traditional full-time private practice role.
Gradually, law firms have recognised the benefits from part-time and other more flexible working patterns, which technology now makes easier, and have embraced these. For example, like many firms, we now have employment partners working four-day weeks and associates who job-share.
Globalisation has resulted in opportunities for employment lawyers to travel and work in other jurisdictions as the HR needs of even relatively small organisations require international coverage. Technological change permits lawyers to be based almost anywhere yet provide a seamless service to clients. Firms such as Fisher Broyles in the USA have exploited this with new models giving lawyers much greater freedom, yet reducing their cost base and consequently the cost to clients. Fisher Broyles operates with senior lawyers based at their own homes across the USA, serviced by a support infrastructure in Atlanta.
Within my firm, we have responded to these shifts and client demands by creating a separate business providing low-cost employment support utilising former associates who work from home around the UK with a much-reduced cost base and the flexibility for the lawyers to set their own hours.This arrangement has proven particularly popular with maternity returners, who value the greater ability it gives them to balance work and home life, and without doubt it has enabled us to retain very talented lawyers who otherwise would likely have found the demands of traditional working arrangements impossible to navigate and would probably have left the profession, at least for a while.
Some British employment practices, including our own, have responded to the reduction in small employment claims and the growth of in-house employment law teams by developing the expertise and services to support the in-house teams that the in-housers are less likely to have. This has had a knock-on effect on employment lawyers’ jobs. Employment lawyers in many firms are now expected to specialise in specific areas of employment law and become experts on, say, equal pay or employee data protection or works councils, which specialist knowledge smaller in-house teams are unlikely to have.
As well as specialist expertise, firms have looked at supporting the fluctuating demand for help experienced in-house. One consequence has been the much-publicised recent growth of flexible resourcing. Well-known examples, which have grown rapidly over recent years, include Lawyers on Demand, which provides lawyers to in-house teams from a bank of self-employed lawyers maintained by them and Axiom, the rapidly growing US business, which fulfils a similar role for in-house teams but from a bank of employed lawyers. Several law firms have followed. Our firm, for example, has a growing business (known as lewissilkinhouse) supplying specialist employment lawyers, employed by us but who only ever work on assignment in-house – covering, for example, spikes in demand or maternity leaves. The growth of these flexible resourcing offerings provides an attractive career option for many employment lawyers seeking a greater degree of flexibility over their careers or working lives more generally.
What next? The demand for more for less from clients and more flexibility from lawyers will not cease or change any time soon. Technology will evolve in ways we cannot yet imagine with, no doubt, a profound effect on all our working ways. There is even talk today about the technology giants working on employment law “avatars” – computers programmed to provide much of the day-to-day advice currently given by lawyers. If this comes to pass, presumably they will still need employment lawyers to programme the avatars to know what to say.