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Archive for February, 2016

Cannot Compute – The end of the Lawyer is not nigh

25/02/2016 | Chris O'Brien
Driverless cars are on the horizon, computers are winning game shows and robots are disarming bombs. You could be forgiven for thinking that, soon, all of life’s legal problems will also be solve

Driverless cars are on the horizon, computers are winning game shows and robots are disarming bombs. You could be forgiven for thinking that, soon, all of life’s legal problems will also be solved by consulting an algorithm, or feeding the aims and gripes of your business into a computer and receiving the perfect answer almost immediately – and simply and cheaply. Nevertheless, while it is true that, nowadays, many tasks that used to be undertaken by solicitors are automated, the complexity of the myriad situations in which clients find themselves will hinder the rise of the machines.

Whilst computers are useful in delivering efficiencies when conducting specific tasks, clients’ lives are often far too complex for a computer to understand. Solicitors have to deal with requests that require carefully tailored answers on a daily basis – computers are not yet ready to compete with their human masters in these more complicated matters.

In dispute resolution, to take the potentially eye-wateringly expensive subject of disclosure as an example, the use of technology has encouraged an increase in the amount of evidence that may be relevant: in one recent case, a party sought to disclose 25 million documents. The complexity increases when a case spans different countries, languages, cultures and time zones. Processing this deluge of information to create a solid legal argument backed up with witness evidence can be a time consuming and expensive task, as can preparing for a trial. However, technology can also be used to filter the swamp of evidence the other side have created. Law firms like Rosenblatt are far more savvy for having utilised the technology in this way.

When seeking to deal with disclosure, a law firm now has a plethora of tools at its disposal, based upon machine learning, in other words trawling through data to spot patterns between, say, email exchanges, or phrases used within the emails themselves and their subject headers. Whilst this is useful in directing a solicitor’s attention to those documents that may be most relevant, human judgement is still required when deciding whether or not these documents should be disclosed to the client’s opponent. As readers of Private Eye’s Malgorithms will know, algorithms have their flaws. In the same way computers excel at spotting patterns that humans struggle with, computers remain challenged when faced with questions humans find easy – because there are no hard and fast rules. To take one infamous example, humans can easily determine that something be regarded as pornographic, without being able to explain why. In 1964, US Supreme Court judge Potter Stewart struggled to define pornography, only to rule “I know it when I see it”. In the same way, our disclosure reviewers may notice a comment in an email that is suspicious and relevant, but the automated disclosure system has not, because the document did not respond to a keyword that formed part of the search criteria.

Meanwhile, in non-contentious work, automation is also on the rise, such as with regard to preparing contracts. With some systems, completing a questionnaire can produce a final form contract that fits the bill. However, computers frequently miss the subtleties of a deal. For instance, the person answering the questionnaire may not fully understand a query, and having “input the data” incorrectly, causes the contract to miss out a vitally important right or protection.

As frequent pioneers, start-ups recognise the balance to be struck between utilising pro forma legal services and the bespoke variety, such as with regard to the ways in which company ownership is structured. Investors, founders, management and even employees have stakes which are carefully balanced by contracts drawn up by lawyers, with the nuances required by the various stakeholders that a computer fails to understand and provide. Start-ups cannot turn to technology to solve their legal complexities, but to firms like Rosenblatt which are well placed to strike a bespoke deal that underpins the fledgling entity.

Purely digital deal-making also presents an opportunity cost. New companies often struggle to find financing from banks, who cannot lend to firms that do not have assets or revenues. However, as law firms frequently act for financiers or investment banks, they become familiar with sources of potential funding.  As a result, law firms increasingly are able to refer clients to organisations who may be able to provide finance, replacing banks as the key to setting up start-ups’ business, a benefit that would be lost when buying, say, a new company off the shelf.

Courts are also becoming more receptive to electronic communication, another factor that lawyers must take into account. Indeed, there is evidence to show that the group of people prepared to receive important advice over a webcam is growing larger, including business people obtaining commercial legal advice from their lawyers by way of video conference. But what is most important, at all times, is that the client as the end user feels comfortable in receiving such advice through technology.

Any client expects, and is entitled to, the best advice from their solicitor; they also prefer speaking with a human being rather than a machine. However, clients equally crave value and efficiency. It would be foolish for any law firm to pretend that technology is not now a commonplace part of the provision of legal services. However, Rosenblatt is a firm whose history is steeped in a strong understanding of technology and e-commerce. We strive to embrace technology and work hand in hand with what the computers have to offer. But rest assured: at Rosenblatt you will always receive the human touch, and there will always be a person at the end of your call.

 

Holiday Pay – is this the end of the issue?

23/02/2016 | Adam Gray
The Employment Appeal Tribunal (“EAT”) has rejected British Gas’ appeal and upheld the Employment Tribunal Judgment in Lock v British Gas Trading Limited. The Employment Tribunal, following a E

The Employment Appeal Tribunal (“EAT”) has rejected British Gas’ appeal and upheld the Employment Tribunal Judgment in Lock v British Gas Trading Limited. The Employment Tribunal, following a European Court decision, decided that employers must pay holiday pay comprising basic salary and commission, if both are earned as part of an employee’s normal remuneration.

Previously the law was unclear as to whether commission, if earned as part of an employee’s normal remuneration, should be included in an employee’s holiday pay. Article 7 of the EU Working Time Directive 2003/88/EC (the “WTD”) provides: “Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks”. Domestically, the Working Time Regulations 1998 SI 1998/1833 (“WTR”) implemented this into UK domestic law. Mr Lock argued that his paid annual leave should include an element of his commission.

Mr Lock was employed by British Gas as a salesman and the amount of commission he earned was significantly more than his basic salary. Part of his role was to attempt to secure new customers on to British Gas contracts. If he successfully secured new customers he received commission. However, when Mr Lock went on holiday his holiday pay was comprised only of his basic salary. He challenged British Gas on the basis that not paying commission in his holiday pay breached his rights under the WTR.

The European Court held that European Law requires that a worker’s holiday pay should include an element of commission if that worker would have earned that commission had he not been on annual leave. The ET and now the EAT have, following the Judgment of the European Court, decided that Mr Lock was entitled to such commission payments in his holiday pay.

The EAT accordingly dismissed the appeal; mainly on the basis that it considered it acceptable to imply necessary words into the WTR to comply with EU law. Following the reasoning given in the sister case of Bear Scotland (which dealt with a similar point re. the elements of holiday pay; but in that case in respect of guaranteed overtime), the EAT concluded that that was the correct decision.

So, is the issue finally settled? We’ll have to see whether British Gas seek leave to appeal this decision. Watch This Space.

Dyslexic employee wins claim against Starbucks

10/02/2016 | Richard Freedman
An employee of Starbucks who suffers from dyslexia, has successfully brought a claim of disability discrimination in the Employment Tribunal following her employer’s treatment of her resulting from

An employee of Starbucks who suffers from dyslexia, has successfully brought a claim of disability discrimination in the Employment Tribunal following her employer’s treatment of her resulting from her disability.

Employment Tribunal cases relating to disability discrimination frequently have an additional layer of complexity when compared with cases concerning other protected characteristics.  Whilst it is almost always obvious whether an individual has a protected characteristic such as a specific religion or belief, race or sex it is not always quite so obvious when it comes to disability.  Although some conditions are automatically deemed to be disabilities for the purposes of the Equality Act 2010 (such as cancer, HIV and multiple sclerosis) the majority of medical conditions will only fall within the statutory definition of disability if it is such that it is considered a physical or mental impairment, and [that impairment] has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.  It is frequently the case that an individual claiming some form of disability discrimination in the Employment Tribunal will first have to prove that their condition meets this statutory definition before they can rely on the protection which the Equality Act seeks to provide.

Dyslexia, like many medical conditions, falls on a spectrum.  It can be very mild, having little or no effect on an individual day to day, or so severe that it makes tasks that would be straightforward to some significantly more difficult for a dyslexia sufferer. In addition, those with dyslexia sometimes seek to hide it or explain away their illness as being due to other issues.  It could therefore be difficult for an employer to know whether a dyslexic employee is disabled under the Equality Act 2010 and therefore whether adjustments should be made to assist such an employee in the workplace.   This is the situation that Starbucks found themselves in when Ms Meseret Kumulchew’s dyslexia caused her to make mistakes as a result of her difficulties with reading, writing and telling the time.  Starbuck’s responded by giving Mr Kumulchew lesser duties and telling her to retrain, she was also accused by her employer of falsifying documents. As a result of this action Ms Kumulchew’s brought claims of failure to make reasonable adjustments, discrimination arising from a disability and victimisation against Starbucks. These claims have recently been upheld by the Employment Tribunal.

Speaking to the BBC Ms Kumulchew suggested that Starbucks could have alleviated the effects of her dyslexia by having her work checked by a colleague, having policies printed in bigger font or by using visual and physical training methods.

Given the potentially huge number of individuals who suffer from dyslexia (it is estimated by the British Dyslexia Association that one in ten people have the condition) this case demonstrates that employers need to be vigilant and not just assume that an employee has poor attention to detail or is unmotivated. It also demonstrates how important it is for those employers to identify ways of making adjustments to alleviate the effects and difficulties faced by employees with dyslexia.   Employers who find themselves in similar circumstances should assess each employee’s case individually depending on the facts involved including the severity and effect of the condition and the type of job the employee is employed to do.

It is also important to remember that employers are not under a limitless obligation to make adjustments; they only need make such adjustments as are reasonable. Again however, what is reasonable can be a difficult question to answer. Taking Ms Kumulchew’s suggested adjustments by way of example it would appear to be relatively easy to print employee policies in large font – so that is likely to be a reasonable adjustment.  Comparatively it would seem to be much more onerous, and therefore perhaps less likely to be reasonable, to require all of her work to be checked by a colleague (since this could potentially double the cost of employing such an employee). Unfortunately for employers the decision on what is and what not reasonable can only ultimately be made by an Employment Tribunal. Therefore it is often advisable for employers who find themselves in a similar position to Starbucks to adopt an initially cautious approach and try to come to a mutually satisfactory agreement on adjustments. Of course that is not always possible and it is those issues which can frequently lead to legal disputes.

Should you need advice on matter concerning employees who may fall under the statutory definition of disability please contact Andrea London or Richard Freedman on 0207 955 0880.

Attention all online traders: Websites must now direct customers to a new Online Dispute Resolution platform

04/02/2016 | Chris Pulham
A new Online Dispute Resolution Platform (ODR Platform) is being set up by the European Commission to provide online traders and consumers in the EU with a simple, cost-effective out of court solutio

A new Online Dispute Resolution Platform (ODR Platform) is being set up by the European Commission to provide online traders and consumers in the EU with a simple, cost-effective out of court solution to resolving disputes arising from online transactions.

The establishment of the ODR Platform will particularly benefit consumers in disputes arising from cross-border transactions in the EU and stems from the European Commission’s initiative to boost growth and strengthen consumer confidence in the digital single market.

The ODR Platform was introduced to the UK on 9 January 2015 and is expected to go live from 15 February 2016 via the website here: http://ec.europa.eu/odr.

Disputes submitted by consumers via the ODR Platform will be managed entirely online by an approved Alternative Dispute Resolution (ADR) provider, and a decision should be reached by that ADR provider within 90 days. Unless the trader operates in a regulated sector (such as financial services or telecoms) or is committed to ADR as a condition of membership of a trade or professional body, neither the consumer nor the trader is required to use ADR to settle a dispute, but it is hoped that the potential benefit to improve consumer relations will encourage traders to do so.

Obligations on online traders and marketplaces

The UK ODR regulations impose a number of obligations on online traders (who sell goods, services or digital content via their website) and online marketplaces (such as eBay) to inform consumers about the ODR Platform. In particular, online traders and marketplaces must:

  • inform consumers about the existence of the ODR platform and the possibility of using the ODR Platform for resolving disputes;
  • provide a link to the ODR Platform on their website and in any offers made to consumers by email (e.g. special offer emails);
  • provide similar information in their website terms and conditions; and
  • provide an e-mail address on their website so that consumers have a first point of contact.

Penalties

UK Trading Standards may seek a court order against any online trader or marketplace not complying with these requirements. Failure to comply with a court order could result in a potentially unlimited fine, or up to a maximum of 2 years’ imprisonment.

Next Steps

Online traders should take steps as soon as possible to update both their websites and terms and conditions in order to comply with the ODR regulations. With a number of recent changes in consumer-related law, this is also a good opportunity for traders to carry out a health check of all their online legal documents.

If you would like more information about the ODR Platform, of you are interested in a health check of your website and/or related documents, please contact Chris Pulham on 020 7955 1425.

This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice in relation to any of the above, please contact Chris Pulham as above.

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