Barrister & Company Secretary Caroline BuchanChambers of Miss C Buchan
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Breast Cancer Awareness month
1/25/2012 4:09:26 PM

Breast Cancer Awareness month
 
Autumn with its heavier skies and the heavy sweet fruit on the trees is my favourite time to be in Sussex as the evenings draw in and you begin to get that leafy, illegal bonfire aroma as you walk outside kicking the leaves and almost break your back on the abundance of acorns and conkers on the pathways. Keats would have said that better than I. With the frightening slide down to Christmas which comes all too quickly every year there are plenty of opportunities for cosy get-togethers in spooky costumes if the mood or the children take you, apple bobbing, standing around bonfires with a juicy hotdog watching the Pope get his comeuppance if you live in Lewes, or firework spectacles to rival China's, drink gallons of mulled wine, eat turkey or just curl up in front of the television.
 
It's a slightly melancholy autumn because it is drawing closer to the first anniversary of the death of my Father. I keep thinking of him ambling back from the Village with his newspaper and stories of who he'd talked to or in the garden and find amazing he was here just last year doing those things and planning for retirement and now here I am completing his final tax return for the 31st October deadline.
 
On the positive side my sister has taken to raising money for Diabetes UK and the Stroke Association and we have tapped into a really friendly, bubbly group for free walks aptly called Healthy Walks organised and chaperoned by the Mid Sussex District Council; if you have a dog so much the better. It is great that the Government give money to incentives like this to keep us all fit and happy. There are walks virtually every day. http://www.midsussex.gov.uk/7735.htm?pageID=4635 
 
One thing my Father pointed out when we were defiantly resisting what was in front of us was that "Life isn't fair". It's a well worn phrase and true. Recently a girl from the year above me at school passed away after battling melanoma at St. Catherine's Hospice leaving a young family and now it appears that my best friend (the second friend in 18 months and both comparatively young) has breast cancer which with any luck will be operable. In her usual upbeat way she has asked me to write this short piece to raise awareness not simply as a reminder that women should be regularly checking for changes but also to flag up employment rights for those with cancer because of course cancer is classed as a disability under the Disability Discrimination Act 1995 and falls under the Equality Act 2010 if you are employed personally to provide services.
 
October seems to be a designated month for a couple of quite important causes and Breast Cancer Awareness month seems to be one of the most important ones. My friend told me that 1 woman every 10 minutes is told she has breast cancer. That's quite a statistic and almost as surprising as three babies being born every second. In essence, and of course everyone's circumstances will be unique and need to be advised upon individually, an employee with cancer may have a claim for disability-related discrimination if not treated in the same way as an employee without a disability and for direct discrimination if the employer's decisions are "tainted" by the disability. A claim might be made if an employer discriminates indirectly unless there is a fair and balanced reason, directly discriminates and harasses because the employee is wrongly thought to be disabled or is associated with a disabled person or victimises anyone. 
 
An employer must consider and where at all possible make "reasonable adjustments" which might include changing working hours, practices, some physical aspect of the workplace or providing extra help or equipment. Inevitably time off work for an operation, any radiotherapy and chemotherapy and recovery time follows and the employer is bound to try to make reasonable adjustments where to do so would not destroy the essence of the job role or be prohibitively expensive and disproportionate in terms of the business. Whether that adjustment would have made a difference will go to any remedy claimed assessed on a case by case basis.
 
Agency Workers Regulations which came into force on 1st October give agency workers the same right to equal treatment and the same basic rights as if they were recruited directly as full-time employees after only 12 weeks. If the worker was in work before 1st October the Regulations will only apply from that date and the agency worker is only entitled to basic rights means no sick pay. Presumably the expectation that an employer make "reasonable adjustment" will be valid.
 
I also wanted to flag up that on 20th October it was Mediation Day although it went by with little fanfare except in the Alternative Dispute Resolution field or Appropriate Dispute Resolution field as some prefer to call it. Where employment issues become difficult mediation in particular is a proven way to help parties resolve disputes with as little acrimony as possible and generally courts want to know that mediation has been attempted before taking up valuable and expensive court time. We live in the real world and recognise some disputes are too difficult and that it may seem foolhardy to even raise your head above the parapet. This evening I listened to a lucid webinar as part of a week long series on dispute resolution, its theme: "Happiness, Conflict and Social Networking" and imagine… creative, resilient and forgiving people tend to be happier and happy people tend not to get drawn into downward spirals of conflict and it follows are less likely to be litigious. Equally it is said that positive people can see off illness better too.      
 
Let's not dress it up. Life is tough and we have to pick our battles wisely and although what I have written stems from sadness I hope it has a positive twist and is a timely reminder to have regular medical checks where appropriate, complete your paper tax return if not doing it online, stand up for your rights but where you can save your emotional energy, time and costs settle your disputes and make the most of this delicious season.
 
 
Not so Transparent
1/25/2012 4:08:24 PM
Transparent about conflict?
 
How many times do you hear a reference to the concept of "transparency"? I would say that aside from the fact that I have been thinking about it so am more likely to notice the use of the word, I have probably heard it 6 or 7 times since breakfast on the Radio. It's one of those words that can cause me to role my eyes along with "appropriate" or "best practice".
 
There has been a lot of emphasis on transparency for public and government bodies, politicians, charities, NGOs and public limited companies accountable to shareholders and the public. This might include avoiding abuse and unnecessary costs through a tendering process, choosing candidates on a fair basis and only rewarding good leadership and results. It is a trend that has followed hot on the heels of major corporate scandals and with current economic problems one that can potentially expose financial weakness.
 
The Government's transparency obligations advise that "there is a presumption in favour of transparency" when considering what documents should be published. This includes keeping all documents and records and being clear what might need to be disclosed, ensuring suppliers are aware of the commitment to transparency and having appropriate terms in their contracts, making sure only the right information gets published bearing in mind data protection requirements and providing information on a website to explain the procurement or employment process identifying how transparency commitments can be achieved.
 
Working with a handful of NGOs significantly supported by DFID I saw the need to be seen to do the right thing that can burden an NGO even when choosing the business location and very objects of aid. Whether a country is a tax haven or provides a preferential tax regime will be relevant to transparency and anti-corruption considerations.  Mauritius, for example, is really the only base for business in Sub Saharan Africa but is most tax efficient way.  
 
The introduction of the Bribery Act was another step towards greater accountability.    There have been prosecutions but I suspect most companies have sufficient systems in place to be compliant.
 
The act of doing the right thing can obscure reality. In court a judge will retire before bias can be inferred regardless of how impartial he is.
 
Western corporates satisfy good governance supported by legislation by revealing stats on green policies, employees and directors' remuneration. The AGM and Annual Report will be a company's opportunity to be open with shareholders and stakeholders. Not to say that figures can't be fudged by focusing on salary rather than perks.
 
Frequently out of court settlements avoid adverse publicity as well as costs. The recent settlement by Pheizer in the USwas part of the US government’s emphasis on combating health care fraud initiative. “Whistleblowers play an important role in protecting taxpayer funds from fraud and abuse,” said Tony West, Assistant Attorney General of the Justice Department’s Civil Division.  “Settlements like this maintain the integrity of FDA’s drug approval process and support important federal and state health care programs.”
 
Parties go to court on the basis of assumptions and a sense of entitlement. I lost count of the number of defendants in road traffic arbitrations who had "assumed" the other party had seen them or interpreted their actions not in the way they were intended.  
 
When positions are misunderstood bad feeling and conflict arise from simple misunderstandings and poor communication.
 
One party may assume his needs and expectations are obvious when really they are far from being so. Unmet expectations and needs cause disagreements and extreme reactions to apparently small triggers.

The trick is in how we choose to react and how we choose to respond to others. It can be a trap to avoid or ignore the feelings or behaviours of others and unhelpful to respond in kind. Temporary solutions used to manage the situation, perhaps stuffing down natural feelings and inclinations to avoid the conflict, enable an increasingly severe and recurring conflict situation.  
 
More than simply improving communcation and understanding, parties should try to really connect with the other person and acknowledge how they feel not assuming that what is important to one is going to be important to the other. I have heard it suggested that those we call bad are simply those that can't empathise. That seems too simplistic but it certainly helps to put oneself in another's shoes. Asking questions can help identify the cause of a problem. I find these simple approaches useful during mediations and arbitrations.  

We don't always understand ourselves well enough to be transparent and understand our motives and how can we get along with others before we know ourselves? How many live roles and identities that make them unhappy? How glibbly we say life is too short but stay stuck in the same situations? A good friend quoted some Shakespeare to me recently:
 
"This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.
Farewell, my blessing season this in thee!"
 
Your Flexible Friend
1/25/2012 4:07:03 PM
 
My best friend would work evenings and weekends and referred to himself as a "flexible friend"…. A throw back to the marketing of a certain credit card I believe. In a competitive legal career that I enjoy I have long accepted that I have to be flexible and imaginative in my approach. Anyone who has worked for themselves knows that flexibility and focus and taking care of clients and customers is crucial.
 
The fairly recent Legal Services Act got a pretty poor reception from many lawyers because it allows for the ownership of legal businesses by non-lawyers so big brands like the Co-operative Group and various insurance companies and banks can offer legal services. This has led to the hue and cry that the quality of legal services will inevitably fall in a world where "Tesco Law" can offer blue and white stripped value legal packages to its customers. I am not aware that Tesco as yet offers legal services but I would happily put my name forward! The idea is really no different in concept to that of insurers using a panel of solicitors' firms to outsource work to at a competitive price. It is part of a general trend of bringing services in-house or of combining services under one umbrella. The question will be whether it is a quality service and therefore whether it achieves value for money for the consumer.   Judging from thesussexnewspaper.com's own home page survey as to "who should earn more", lawyers rate extremely low in most peoples' minds as deserving of a pay increase so maybe the public will embrace the new way of working and applaud the competitive legal fees. 
 
I have practiced as a Barrister for number of years and recall that there was a time when Barristers unlike Solicitors were traditionally not allowed to advertise their services but had to find work via the Solicitor who was the middleman, or chase debts some of which were incurred by the Solicitor sitting on the money in their account which was accruing interest. Thankfully now that has changed. Barristers like myself, can now offer their services directly to the public under the Bar Council's direct public access scheme or work in-house and can pursue their debts in the normal way. This is all great but what it signifies is that the Bar has long begun to recognise that it has to run itself in an even more approachable and businesslike manner while it retains something of its traditional appearance that seems to give clients a degree of reassurance that we treat all matters with sufficient gravitas. 
 
It is time for many of us to jettison the old ways of working, relating and responding and move into the 21st Century. The turmoil of the economic situation has since 2008 produced a golden opportunity to specialise, improve, innovate and offer alternative services. Flexibility and focus are the keys. It's all a matter of adjusting how you think particularly where your old ways of thinking or acting are working against you or your business. If clients want to use cloud computing or have conferences on Skype so be it.  
 
Traditionally it was and since the recession maybe still is quite strongly the case that you put up and shut up in the work place if you feel there is a problem because you do not want to lose your job. More and more I am hearing from people that they are in untenable situations within their workplaces and not enjoying their jobs anymore. The pressure put on individuals by organisations desperate to survive the credit crunch is often too much to bear not just economically but personally in terms of low morale and an absence of incentives but worse must be when individual managers in organisations bring inappropriate pressure to bear whether by setting unrealistic targets, creating an atmosphere of stress or failing to support those who look to them for leadership and guidance.   I had the interesting task of advising one friend whether or not to say something more to his manager on the basis that he should be supported in his job role and not undermined. I've always believed that like Dr Seuss, we should all be able to "be who we are and say what we feel, because those who mind don't matter and those who matter don't mind" and I felt genuinely torn between knowing it should be the correct thing to do to speak up again but also worrying in case he lost his job as a result. My initial advice was to temper his words with honey not vinegar but my better advice was to perhaps consider using his immeasurable skills for himself and to put all that energy and enthusiasm into his own projects before he became demoralised any further by an unimaginative and ungracious employer. 
 
The Co-operative Legal Services' financials show that revenues jumped by 22% in 2011 boding well for its entrance into the legal market place with its Alternative Business Structure if it is granted a licence. Maybe there's something to be said for being courageous and novel. 
 
The customer may not always be right but you can help them by giving practical advice that helps to find a solution to their problem. My feeling is that I am bound both professionally and by my own moral compass to give a good service to a client whatever the fee but I will not shy away from pointing out that some think little of paying charge out rates for plumbers and electricians before they even start work but will haggle with lawyers many of whom work in sectors that have been hard hit by the recession and changes to legal practice and have not seen an increase in their fees for some time.       
 
All Aboard!
1/25/2012 4:05:51 PM
All Aboard!
 
I've been off line recently having been sailing along the south coast with friends over the past couple of weekends and surprisingly given the forecasts we have had some really good weather and my factor 50 has really come in handy. The first weekend we sailed from Gosport to Bembridge on the Isle of Wight with the National Air Traffic Controllers on their annual sailing regatta where we were on the committee boat and after a good sail where the NATS teams successfully followed a cryptic Solent treasure hunt we sat back and enjoyed a few gin and tonics with a deputy harbour master and made party hats for their celebratory dinner in Gun Wharf. My cockpit companion ended the night by making my friend a very happy woman by doing a lap of honour around the deck all be it without his party hat.
 
Being currently just about competent crew and with a view to taking a day skipper course at the end of November we've decided to go out sailing as often as we can so were out again last weekend when we went from Gosport up to Beaulieu and moored up for the night with a very tasty homemade lasagna and ginger cake and lots of you've guessed it gin and tonics. On the Sunday we tacked our way back towards Gosport having failed to quite beat the tide up the Southampton Water to see the boat show but still had a good day and lots of food. This isn't the sport to do if you're looking to slim down.       
 
What is quite interesting is that the friends we sail with are mostly men. They generally come armed with a practical engineer's way of looking at things and often an air traffic controller's superb knowledge of the weather systems and seem to quite naturally and quite literally pick up the ropes. Imagine my joy when then I met up with a new client yesterday and his legal assistant began to tell me all about how she had loved sailing with her grandfather who had sailed with Chay Blyth and that she had also like me studied history. That gave me some encouragement as I have been secretly thinking that surely it can't be all that complicated and even those of us with a humanities training must be able to get it. Even more interesting was that it turns out that my new client owns the Victorian Horse Sands Fort in the Solent that we always sail past on our way out of Haslar Marina and into the Solent which looks pretty intimidating from the perspective of a little yacht being thrown around in the waves below it's impressive and dangerous concrete and granite exterior. It's a developer's dream when you consider one of its best selling points is its fabulous 360 degree sea views.  
 
I'm happy to stand corrected but my current perception is that there seem to be more men than women sailing and apart from a few excellent husband and wife teams you can absolutely guarantee that unlike any other event in life when you want a much needed hot shower in the Marina facilities after a day covered in sea salty water that being a woman you won't have to wait in a long queue. I always ask the guys why their wives haven't come with them but usually get answers like "she even gets sea sick in the bath". I think that's a bit of a shame but then everyone needs their space and time out and sailing is very relaxing as well as exciting at times.
 
It made me think that sailing is analogous to company board rooms. It's been my absolute pleasure to work with some very strong and capable female directors but they are still even in 2011 few and far between. Quite often you see the same names on different boards as Non-Executive Directors, what the French call "Golden Skirts". 
Ten years ago women on boards made up about 5% and today only around 12.5% of a FTSE 100 board makeup. It's becoming a more pertinent discussion since Lord Davies' Report earlier this year which suggested that companies should publish the number of women sitting on their boards and working in their organisations, recommending that businesses in FTSE 350 companies should set their own targets for increasing female representation on their boards by 2015 and that the FTSE100 should challenge themselves to increase the proportion of female directors on their boards to 25% by 2015.
 It is a major driver now of corporate governance reforms to get more minorities on boards to robustly question the executive directors and represent shareholder and employee interests. There is growing evidence that companies with more women on their boards outperform their male-dominated rivalsThere are still underlying issues like why do women still earn less than men and why is it that the higher up the ladder you go the less women you'll meet? It can't still be the case that women drop out of ambition once they have a family in a world where we will still have to all work to maintain any sort of life for many years to come. Sadly I have come across women in legal and company secretarial roles who just will not promote themselves or other women and accept the status quo and even participate in jokes about token women on boards with the male directors. Why is that?      
 
 
 
 
The Road Not Taken
1/25/2012 3:11:07 PM

 

"The Road Not Taken"
Or
Our Promise to Young People?
 
The shock of last week's riots across London and other major cities was 24 hour news and a source of debate and story swapping around many a dinner table. From liberal excusniks to those joining in the facebook campaign to bring out the army, people of all classes, races and ages have genuinely been completely floored by the apparent mindlessness of some young people starting fires, looting and putting lives in danger.
 
The ensuing debate has partly been occasioned by an inability to put a finger on the problem in contrast say with previous anti-capitalist riots, poll tax riots and the racial riots of the 1980's. On the face of it last week's anarchy was prompted by anger and resentment, a lust for shiny objects and a sense of entitlement. As one girl on benefits said: "why shouldn't I…it's my taxes!" … interesting argument …. I would suggest that young people be guided to consider which road they want to take as per the Robert Frost poem of the title.
 
A friend working at a London College teaches 14-16's and comments on how malleable their minds are; adults who aren't quite fully formed. He has dealt with thuggery and theft of equipment, students talking back at him, not bothering to produce work or show up at all thereby losing their places, teenage pregnancies where there was promising talent and angry parents who won't sanction discipline. He was however confident that none of his own students would have terrorized Croydon in the way we witnessed on the television because he maintains they are the exception and the ones he can go that extra mile with who do really well. That says something about their personal choices.
 
All the aftermath discussions took me back to an English class at school where we had to discuss if John Major's laudable aim of a classless society was a runner. 
 
I think the riots and subsequent reactions illustrate that we are still deeply segregated into our classes in our mindset and our educations regardless of the actual potential to pull one up. Understandably horrified, I suspect middleclass liberal ideology has been tested to its limits and that actually they themselves might be a component of the problem. The more they climb the more they squeeze out the poor. Competition for school places, artificially increasing property prices and selling off playing fields and amenities to build overpriced flats and offices have added to the problem. We all look out for our own.
 
We have little manufacturing to speak of and an insane emphasis is put on degrees in whatever subject at an off putting cost instead of applauding and encouraging practical people to make things and ensure that the UK has an industry. The German example of making young people choose an intellectual or vocational route is a good one and their third way of sending the unmotivated out to do community work makes good sense. We also have an educational deficit in that many school leavers don't have all the basic reading and writing skills which is an issue for every government and local authority and until that is resolved our young people will struggle to get hired.   
 
The middle classes are increasingly feeling disenfranchised. After University fees and paying off that debt is the battle to get on the housing ladder. As for pensions or any semblance of a retirement forget it. The UK should follow the lead of countries like Italy and Australia and abolish inheritance tax to enable hard working parents to help their offspring because we are setting ourselves up with an impossible future burden on society.       
 
East Sussex is affluent yet according to an article in the Argus on 16th February 2010 one fifth of children live in poverty and the figures are increasing. Complainants accuse the previous government for diverting funding away from the South East to the North. The cost of living in Brighton is commensurate with London. There were no riots in this region. That I hope says something positive but much still needs to be done.  
 
The latest edition of the local "Business Edge" magazine had an article where Chris Grayling reflects on the 6000 young jobseekers in Sussex and a £200 Million Government package to support young people and get them into work through a Work Experience initiative. By enabling 18 to 24 year olds to do a two month placement without losing their Jobseeker's Allowance they can get real employment experience and enhance their CVs; a practical initiative that tackles joblessness and the lack of motivation issue. 
 
Initiatives like this require businesses to step forward and offer placements. I have met some business owners locally with imaginative and successful businesses so the opportunity is there along with organisations like the Prince's Trust. Let's curb our appetite for shows that propel people to stardom and give recognition to those who make a go of their lives and are hard working and satisfied with their own sense of achievement. 
 
You choose your path. Human beings are progressive creatures and whether you make or are given opportunities hopefully one day you can say that those choices you made made all the difference.
 
 
Not ditching the wig yet
1/25/2012 3:11:06 PM

 

Not ditching the wig yet!
 
I have been to two excellent local networking events recently, one with Warren Cass last week at the Jury's Inn, Brighton which was great fun as the speaker was a former Apprentice contender and the other yesterday with Sussex Enterprise at Park House near Midhurst, as beautiful a location as any you'll find in Sussex. Certainly the warm pastries would have got Mary Berry's seal of approval. What made me stop in my tracks was the cheery farewell from one attendee who wishes me luck in "ditching my wig"! 
 
I've never wanted to stop doing advocacy work for clients and this comment had the effect of making me realise, with great certainty, that in true Steve Jobs style I love my job. It also gave me a bit of a ‘heads-up’ about marketing services and how people perceive what I can do for my clients. 
 
It helps, of course, if potential clients understand what you do and how you can help them. My interactions with other networkers have taught me that they have a very specific idea of what a Barrister is and not much of an idea about what a dedicated Company Secretary can offer a business - or even if they require one. That being said, I am as ignorant of many areas of business myself and would like to know, for example, more about what a management consultant really does.      
 
I've learnt to deal with the myths and educate where there is a lack of knowledge and do it in a snappy way that shows where you can "add value" to their lives or business. This apparently should be possible with a succinct "elevator pitch" ideally delivered in the time it takes to travel 6-10 floors. 
 
A Limited Company doesn't need a Company Secretary but can benefit from using one to manage its statutory administrative obligations and the corporate governance regulations with which companies have to comply. 
 
Barristers, also sometimes referred to as Counsel, have been directly accessible to the public since 2004 under the Direct Public Access scheme regulated by the Bar Council and can advise on all aspects of a matter like a one stop shop as well as go to court (with or without the wig) to represent a client. Further Barristers are often not more expensive than solicitors because we have less in the way of overheads and will often charge a fixed fee.
 
Following on from my recent column about "Tesco Law", the Legal Services Act came into force on Thursday, which was all over the news. It stirred up the inevitable talk of supermarkets undercutting High Street solicitors. As already discussed it pays to be flexible with your business and in meeting clients' needs. According to the righthonourable Ken Clarke QC MP's recent letter to the Chair of the Bar regarding changes to legal aid, efficiency and value for money are paramount and to be considered along with the already high ethical standards and sense of public service associated with the Bar. Note to solicitors, I suspect this can be applied to you too. The message is clear that professions have to change and adapt to current circumstances - and why not? We're more than capable of working in a modern way and remaining professional.
 
Herewith a clarification. The Tories have had their spat this week about the cat. The judicial decision in question related to a Bolivian student applicant's right to family life under Article 8 of the much-maligned European Convention on Human Rights with an unmarried British partner; the cat was secondary. The point made at the party conference might better have been in Cameron's speech about marriage and gay partnerships. The decision was upheld by the judge who noted that the cat need no longer fear having to adapt to Bolivian mice.    
 
We don't all wear wigs to work, but I still have mine and don't mind wearing it. Let's talk about wigs and gowns. The gown dates back to mediaeval times and was a sign of learning, as were the bands around the neck. By 1600, after centuries of brightly- coloured gowns, black became the colour of choice and upon the death of Charles II it became a mourning gown. Legend has it that barristers were literally paid with a "back hander" when their instructing solicitors put money into the little pocket-type thing that hangs over the shoulder on the barrister's gown. The wig itself was a fashionable addition brought back to England by Charles II from the court of Louis XIV and their size became the inevitable source of competition between men; from whence we get theterm "bigwig"!   
 
Changes to court dress announced by the Lord Chief Justice took place in autumn 2008 and the wearing of wigs in the family courts has been completely abolished in an effort to make judges and barristers appear more approachable, including removing the necessity to be fully robed. This was an important and positive step to take in family hearings where children and young people are involved, so as not to seem intimidating. Robes and wigs are still frequently worn in the higher courts of England and Wales and the County Court unless the judge dispenses with wearing them, say on hot days, because the horse hair tie-wig can get a little scratchy.
 
The Bar recommended in a letter by its Chair that advocates should retain their existing formal robes (including wigs) in all cases, civil and criminal, with possible exceptions in the County Court for a good reason:
 
" There is strong identification of the Bar of England and Wales in the public's mind and its formal dress nationally and internationally."
 
In criminal cases, although not worn in magistrates’ courts, I think wigs and gowns add a certain measure of gravitas to the proceedings and respect for the court process as a whole. It also gives a measure of anonymity to Counsel so you focus instead on what is said and less on the individual speaking. It says what it is on the tin and Counsel can also escape more easily from the court house and any disgruntled relatives!
 
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