Whither Employment Lawyers in 2035?
James Davies -
Twenty five years ago, at the start of my London-based employment law career, I recall advising on a workplace dispute in Arbroath, a small town in Scotland. This seemed at the time as far from London as my professional career would be destined to take me. How the world has changed since then.
James Davies
Today, globalisation and technological change mean that our clients, large and small, expect us to deal with their employment issues in London, Ontario, as readily as in London, England – and quickly too. Whether the firm is part of a multinational law practice, a “best friends” network covering key jurisdictions or a specialist alliance like Ius Laboris – of which my firm is a member – employment lawyers are talking daily to their contacts, developing relationships globally to meet client needs.
Twenty-five years ago, telex operators were being phased out with the arrival of the fax. This remarkable invention – at least to me at the time – enabled the instant transmission of documents, albeit on shiny paper from which the script faded later. Desktop computers were replacing typewriters and dictaphones were rapidly making shorthand redundant.
No lawyer in those days could have foreseen how our work would be further transformed by e-mail, the internet and mobile devices such as Blackberries.
In other ways, however, things have changed little. I recall a presentation 15 years or so ago by a well-known technology company, suggesting that lawyers would soon all be “hot-desking” or working remotely. The expensive city-centre offices to which we all commuted would soon be consigned to history. Despite some moves in this direction, there has not yet been any such radical transformation of our working ways.
Equally, the employment relationship on which we advise has not changed significantly. So called “atypical” workers – such as agency staff and part-timers – are more common but the workforce is still dominated by permanent full-timers working nine to five under regular contracts of employment.
Employment laws have moved on but not, in fact, all that dramatically. In the UK, employee protection has gradually been enhanced by the combined influence of EU-inspired laws and, until recently, a Labour government since 1997. Thanks to the EU, for example, the UK now regulates working time and has extended discrimination laws to age, religion and sexual orientation. Meanwhile, the Labour government was responsible for halving the qualifying period for unfair dismissal from two years to one and extending protection to low-paid workers through minimum wage laws.
Dealing with discrimination claims started to become an integral part of the UK employment lawyer’s workload in 1993, when the compensation limit was scrapped. Over the same period, UK trade union membership has declined from 10.82 million to 7.05 million, reducing the importance of collective labour law. Yet these changes do not represent any fundamental shift in the protection of workers.
Specialist employment lawyers are now much more common than they were 25 years ago. In the mid-1980s colleagues regarded my specialisation as somewhat eccentric, but today the UK Employment Lawyers Association has over 5,000 members. In some other jurisdictions, particularly Asia, specialist employment lawyers are still rare, with the leading practitioners combining it with corporate or general litigation expertise. This is set to change.
None of us can predict how an employment lawyer’s job will be transformed over the next 25 years. No doubt, as in the past, some things will change beyond our wildest imaginations whilst others will remain reassuringly familiar.
Assuming the world’s economic woes do not result in a period of protectionism and a retreat from the hitherto relentless march of globalisation, our international reach will become more important. If predications of an increasingly “multi-polar” world are correct, international businesses based in Brazil, Russia, India and China will displace many of the US and Western European-based multinationals from the lists of the world’s largest. This trend was illustrated by this year’s Global 500 review, published by Financial Times. Four of the largest 12 companies were China-based (including PetroChina, the largest), with multinationals from the other so-called “BRIC” countries rapidly rising through the ranks.
Will our focus move increasingly East and South? Employment laws in those jurisdictions are, in many ways, quite different from those in North America or Western Europe. Will our international employment practices evolve in response, so that our teams include Portuguese, Russian, Hindi and Mandarin linguists alongside lawyers who can speak French and Spanish?
Those of us for whom international employment law has become a key part of our daily work have had to develop a basic understanding of the employment laws of the countries which we (in the UK) most commonly deal with, such as France, Germany and the US. I doubt it will be long before we need to extend this to jurisdictions such as the BRIC countries. Similarly, law firms based in these nations and others too are likely to join the most eminent in the international arena.
As the world changes, relationships with the best employment lawyers in less obvious jurisdictions will be increasingly valuable. In the past few weeks, I have had a sudden rush of questions for Kazakh colleagues. I wonder where next will be in vogue?
How we charge for what we do will change fundamentally. Whilst talk of the hourly rate’s demise may be premature, the shift towards alternative methods of charging for legal services is here to stay. Fixed fees, retainers, success fees and performance fees are all a growing feature of both domestic and international work. Firms need to adapt to their clients’ demands for value and certainty.
Whether you belong to a multinational firm, an alliance or a “best friends” network, greater competition will require higher levels of responsiveness and commerciality in the service you provide. Clients will expect a coordinated service, so project management skills will become increasingly crucial in the employment lawyer’s armoury.
Will law firms face growing competition from other service providers? The charge of the big accountancy firms a decade ago promised this but ground to a halt with the Enron scandal, the demise of Arthur Andersen in 2002 and the restrictions placed on accountancy firms under US Sarbanes-Oxley laws. Nonetheless, it would be complacent to assume that the law firms will have the market to themselves for the foreseeable future. In the UK, the 2007 Legal Services Act allows solicitors to enter into partnership with non-lawyers and sanctions external investment in law firms. Will this presage legal practices becoming listed companies, providing a broader range of professional services?
Lawyers provide information as well as advice, but they will not be able to compete with specialised information providers and will work more and more in partnership with them. Commoditised and routine work is likely to become increasingly technology-based, possibly leaving lawyers to focus mainly on the value-added premium work.
And where will we be working and where will our colleagues be based? I expect the move from large, expensive, city-centre offices to gather pace. Video technology will, at long last, reduce the need to travel to meetings with colleagues or clients. Perhaps the disruption caused to air travel by the Icelandic ash cloud will prove the final push in this direction?
This is not to suggest that the socialisation of work and the need to work collectively is unimportant, but the employment law practice of the future years may have to rely on a variety of component parts. One possibility would be a group of senior lawyers working from a base or bases, supported by a smaller number of more junior lawyers who are being groomed to join the “partnership” – although whether the model of partnership will even survive is another matter.
Such a group of lawyers would be supported by an eclectic range of “partners” in a different sense – other lawyers, information specialists and technology providers, all working remotely. These could be professionals providing routine support from a low-cost base in India or South Africa, or lawyers who have chosen to work remotely for lifestyle reasons – whether on the Isle of Skye in Scotland or the shores of Lake Wanaka in New Zealand.
How will employment law change? Local employment laws are rarely fit for purpose in the frontier-free world of modern business, yet any move to greater conformity seems further away than, say, 10 years ago. In Europe, political pressure for greater harmonisation within the EU has been replaced by concerns about the Union’s possible disintegration. The buzzword in Europe has been “flexicurity” – an arguably irreconcilable fudge between adequate employment protection and flexible labour markets.
In Europe, as far as specifics are concerned, it is not difficult to foresee tensions within religious discrimination laws attracting attention, controversy and interesting challenges for employment lawyers. As governments fight to reduce huge budget deficits, laws designed to enable certain groups to remain at work will come to the fore. This is likely to include legislation facilitating parents and carers to combine careers with family responsibilities and permitting older workers to continue past historic retirement ages.
Perhaps the most significant demographic change facing us is the increase in life expectancy. In the UK, life expectancy is currently increasing by 15 minutes every hour. In other words, every four years, life expectancy increases by a year. Businesses, governments and workers cannot afford to fund extended periods of economically inactive retirement. The change that one can predict with most confidence over the next 25 years is that many more employees will be working well into their seventies.
So, in 2035, this lawyer will be 73 years old – hopefully not just reflecting on developments over the past 50 years, but also making wild predictions about mid-century employment law.