Social media issues have added to the already busy workloads for Scottish employment lawyers over the last year

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EMPLOYMENT lawyers can’t remember a time when there has been so much focus on their sector.

“In the last 12 months, the amount of consultations coming from government has been unprecedented,” says Sean Saluja, head of employment with Paull and Williamsons, top-rated in Chambers.

Eilidh Wiseman of Dundas & Wilson – in band one for both directories – has practised for 20 years and says: “It’s always been a very dynamic area that moves constantly, but we are on a different level now.”

It is, she admits, sometimes difficult for legal firms, never mind their clients, to keep up. Saluja agrees, especially when coupled with the need to stay in touch with existing case law.

Joan Cradden, head of employment at Brodies, also in band one for Chambers and Legal 500, is concerned at the short time
scales for this raft of consultations, fearing they don’t allow enough time for fully-rounded responses.

All three lawyers are clear why the Westminster coalition has put so much focus on employment law. “It is about a perception that things were too employee-weighted and it’s an attempt to shift the balance,” says Saluja.

Wiseman describes it as an attempt 
to “recalibrate” the employer-employee relationship and supports the principle of the pendulum swinging back towards the employer in areas such as shorter consultation periods on redundancies and protected 

However, she thinks some of the more extreme pronouncements by government – such as giving up unfair dismissal protection for a share in the company – will probably never make it to the statute book. “That is going beyond even what most employers would want,” says Wiseman, “and I don’t think our society wants employers running
away and doing what they want, or for 
people to give up basic employment rights.”

Wiseman identifies a rise in mediation in employment cases, which she sees a positive sign of trying to resolve disputes at an earlier stage. At the other end of the scale, she sees more cases going to litigation because employers are determined to “put their foot down” and prevent what they see as spurious claims. Cradden says she sees hopeful signs in Employment Tribunal reforms, saying that employers think they might lead to fewer “nuisance value” claims.

Cradden also identifies a trend arising from the economic climate: “There are some fairly drastic changes to terms and conditions that would have led lawyers to bite their nails five or six years ago, but now 
employers see this as an option open to them if existing terms and conditions 
become unworkable.”

Social media continues to throw up big challenges. “A social media policy cannot just be written up like a disciplinary policy and left on the shelf for five years,” says Wiseman. “The technology, the kind of use and the volume is always changing and policies need updating all the time. They must be fluid and flexible and ‘owned’ across the firm – it’s not just an HR issue.”

Saluja agrees and says employers are behind the times: “Many…might pounce on someone who lets off steam on Facebook, but find they don’t have an appropriate policy. Some are just dealing with e-mail and general internet use, while social media is concentrated in certain areas now but could move on very rapidly indeed.”

Cradden argues firms could do much better: “It’s not very hard to get right. The judgment call about how far you take it can be difficult but you need to give yourself a platform to take action. You have to keep up and we are almost at the annual review stage for a social media policy – and associated policies like Data Protection and confidentiality.”