Can I chose my own lawyer under legal expense insurance?

As most of you know one of the staple ways which many employment cases are funded are via home contents insurance policies. Under most of these there is a clause which allows you to be funded right from the start to the end of your employment case, subject to a financial limit and subject to an employment lawyer assessing your claim (usually at over 55%).

There are certain elephant traps along the way:

Firstly look out for who assesses your merits, what are their credentials?

Secondly, don't be fobbed off easily if you disagree get another opinion from a Barrister

Thirdly, some policies suggest that you cannot chose your own lawyer. This is plainly wrong if the Financial Ombudsman is to be believed.

You can chose your own employment lawyer in 3 sets of circumstance:

1) It says so under your policy

2) Their is a conflict of interest

3) If you have started proceedings i.e if you chosen lawyer has submitted your ET1.


Please see :

The Ombudsman's site 

and on that site :


'(regulation 6 of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 [SI 1159]) allows policyholders to choose their own solicitors.'

'These regulations are wide enough to include legal proceedings pursued and defended in tribunals – for example, employment tribunals – as well as proceedings in courts. '

Removing provisions from the Equality Act will not help employers, says Law Society

 A thought provoking defence of the Equality Act  from the Law Society:


 The Law Society has warned that removing certain provisions from the Equality Act will not help employers. The warning comes after the government published a series of amendments to the Enterprise and Regulatory Reform Bill this week.

The amendments, to be considered in the report stage of the Bill, abolish the Equality Act provisions on third party harassment (which make an employer liable for failing to act where their employee has been harassed by a third party) and the use of claimant questionnaires in discrimination claims.

The Law Society has highlighted the fact that these provisions can in fact be beneficial to employers as well as employees.

Under section 40 of the Equality Act an employer is not held responsible for the third party's actions in themselves, but for failing to act where they have been told of the harassment; when it has happened on at least two previous occasions; and where the employer has not taken such steps as would have been reasonably practicable to prevent the harassment.

 "Harassment is unacceptable in any workplace," says Chair of the Law Society Employment Law Committee Angharad Harris. "The benefit of the third party harassment provision was that it has encouraged best practice amongst employers and this in turn helps to reduce potential incidents of harassment at work."

"The questionnaire procedure can also help employers because it encourages an employee to ask all of their questions at once, rather than through a series of informal questions which make it harder for an employer than if they had been raised all at once.

 "Questionnaires also discourage those cases that have no merit."

  The Law Society says that business concerns could have been addressed through better guidance on how to deal with third party harassment and how to answer questionnaires.

Angharad Harris added: "Most employers want to do the right thing, and want clear advice to understand how employment law affects them."

 When in doubt, the Law Society advises employers to get in touch with their local solicitor.

Courts says 'work for your benefit' scheme not slave labour

R (on behalf of Reilly & Wilson) v Department of Work and Pensions saw Article 4 ECHR and the following question considered: Is it slave labour and therefore unlawful to force an individual in receipt of Job Seekers Allowance to participate in a 'work for your benefit' scheme?

Miss Reilly was a geology graduate who was required to work in Poundland for two weeks and Mr Wilson was a HGV driver who was required to work for an organisation delivering refurbished furniture to the needy in the community for 30 hours per week for a period of 26 weeks.. Both were required to do this if they were to receive their benefits.

Both Claimants claimed this amounted to a breach of Article 4. The outcome was that  such schemes could not be said to amount to 'slavery' or 'forced labour'.

Reduction in Judges' salaries leads to judicial retention warning

Reduction in Judges' salaries leads to judicial retention warning



The combination of a three-year pay freeze and pension cuts “is likely to cause judicial retention and recruitment problems,” the Lord Chief Justice has warned as a pay freeze has reduced judges' salaries by up to 18 per cent.



The LCJ said in his report for the period January 2010 to June 2012 that the Senior Salaries Review Body (SSRB) had calculated that the pay of circuit judges had been cut by 15.9 per cent.

The salaries of district judges had fallen by 16.5 per cent, the report found, High Court judges by 17.1 per cent and lord justices of appeal by 18.4 per cent.

Judges’ pensions were assessed by the SSRB as amounting to 34 per cent of their total reward.

“In relation to pensions, as elsewhere in the public sector, a contribution liability has been imposed, further reducing take-home pay,” Lord Judge said.

“The extent to which the government seeks to reduce the annual accrual value of benefits under the judicial pension schemes is unknown. Whatever it is, it will reduce the total reward of a judge still further.”

 Lord Judge said in the report, published last week, that the “morale, recruitment and retention of judges of the highest calibre depends in part on the adequacy of their financial reward.”

He said the SSRB had said it was increasingly concerned about the morale and motivation of its ‘remit groups’ because of the deterioration in their terms and conditions.

“This observation is self-explanatory,” Lord Judge said. “The cumulative effect is likely to cause judicial recruitment and retention problems.”

In The Solicitor's Journal he said:

“Consequent constraints have affected and will continue to affect every aspect of national life, and the administration of justice is not, and has not, been immunised from the economic crisis.”

Sick worker who could not take 4 weeks holiday was not required to ask

In NHS Leeds v Larner the Court of Appeal has held that a worker who was unable to take four weeks’ annual leave due to sickness did not have to make a request to carry the untaken leave over into the next leave year in order to receive a payment in lieu of it on termination of employment. 

In recent cases it has been suggested that a Cliamnat was not entitled to payment in lieu if they had not requested the leave before the end of the leave year. This too was the argument submitted by NHS Leeds but rejected by the courts.

The European Court of Justice’s decision in Pereda v Madrid Movilidad SAestablished that a worker who is on sick leave during a period of previously scheduled annual leave has the right to take that leave at another time. 'Pereda' was applied to the instant case, L had not had the opportunity during the leave year 2009/10 to take her annual leave. L was thus entitled to carry over her leave entitlement under Reg 13 WTR to the following year without having to make a formal request. The right to be paid for that annual leave crystallised on the termination of her employment. She was therefore entitled to be paid for the annual leave which she had not been able to take in the leave year 2009/10. NHS Leeds appealed again.

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ACAS issues Olympics guidance for employers

ACAS issues Olympics guidance for employers

The Advisory, Conciliation and Arbitration Service (ACAS) has issued guidance for employers on some of the issues that might arise in connection with the London 2012 Olympic Games, which commence on 27 July. Questiions such as how do you avoid disruption? are broached.

They say on a very useful website:

Everyone is working together to make the Olympic and Paralympic Games a great success. Employers should now be considering more flexible working arrangements, how they might minimise potential disruption and manage staff expectations to ensure business runs smoothly .

Employees are split into volunteers, spectators and those watching TV from home - more.

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Part-time judges should receive pensions, Supreme Court rules

UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’. The Supreme Court has followed the invitation from Luxembourg to consider part-time judges as 'workers'.

UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’. In March, the European Court of Justice said in Case C-393/10 O’Brien v Ministry of Justice that such exclusion would only be lawful if the relationship between judges and the Ministry of Justice was “by its nature substantially different from that between employers and their employees falling under the category of workers”.

Holding judicial office was “insufficient in itself” to exclude judges from the protection in the directive, the court went on, as it proceeded to list the factors the Supreme Court should consider when assessing whether the exclusion could be justified. Just because part-time judges and recorders retained the opportunity to practise as barristers didn’t mean they weren’t “in a comparable situation” to full-time judges, the court found, as they performed “essentially the same activity”.

The case was brought by Dermod O’Brien QC, who sat as a recorder for 27 years and was refused a pension when he retired in 2005.

The Supreme Court has decided not to remit the case to the employment tribunal and consider remaining points of fact at a further hearing on the appeal on 21 November. The Justices agreed that this was because there are no “significant disputed issues of fact to be determined” .