Inside In-House Podcast Episode 3: Employment Law Space
In our final episode of the Inside In-house Podcast for 2020, Tyrilly interviewed three employment lawyers with private practice and in-house experience to understand their career journeys to becoming employment law specialists. The panel also tackled the important role employment lawyers play in managing end of year festivities for the organisations they support.
Katrina and Sophie are dedicated lawyer writers for Practical Law's employment module and shared their experience in legal practice with special in-house counsel guest, Kym Korbel. Have a listen to the legal podcast below and scroll down for the episode features.
Podcast show notes
Finding the employment law calling
Kym is Head of Employee Relations and Policy at Metcash. Interestingly, law is Kym’s second career, having trained and worked as a medical scientist for a number of years before making the decision to change careers. When Kym completed law school, she landed a private practice role in an IP team. Over a period of eight years, Kym was sent on a number of secondments.
“Spending that time working directly within the business made me realise that that's what I wanted to do.”
Once Kym became a mother, the timing was perfect to move into a part time in-house position. Her first toe in the water was as a general commercial lawyer for a food manufacturing company.
“When I started, there was no one there who specialised in employment law, and the HR team briefed people brief lawyers directly. The General Counsel wanted to get a better understanding of how much money they were spending on legal fees, what types of questions they're asking, and how often they might be asking the same questions.”
Kym put her hand up to act as a “post-box” for HR legal queries, and the rest as they say, is history.
“With the support of the General Counsel and the HR Director, I decided to focus on employment law from that point on, and I don't think I could go back. While I'm certainly not an in-house lawyer by design, I really feel like I've landed in the best place and found the right area for me.”
Key differences between roles
During the interview, Tyrilly asked Kym to outline some of the key differences between being an in-house lawyer to an in-house employment lawyer. Kym replied:
“When I was a general commercial in-house lawyer, I felt like I was more a jack of all trades. Now as an employment lawyer, the work is still varied, but certainly much more focused in one area.”
“As the employment lawyer, when I've sat in the legal team, there is much less fiddly cross-collaboration with me to the point that in a previous organisation, the General Counsel said that he knew the HR team liked me and needed me, but he'd much rather have my head count as another commercial lawyer.”.
Tyrilly observed that it was more common nowadays to see employment lawyers sitting apart from the main legal team, and instead having a functional role within the HR team itself. Kym noted:
“That makes a lot more sense for this role. We're still involved with the legal team, though sit within the team that directly utilise us and provide advice. It's a welcoming and collaborative environment.
Tyrilly added her observation’s to Kym’s commentary, noting that in-house lawyers are best utilised when they are engaged early on in transactional work.
“Certainly, we can do the most for our clients when we are part of that collaborative process,” she said.
Sophie, Senior Employment Law Writer at Practical Law, agreed with Kym’s comments, recalling her personal experiences in the in-house employment law space being a much more collaborative experience.
“I think I learned a lot of soft skills...you've got to be building discretion at all times, professionalism at all times, be approachable, yet still be clear to each and every stakeholder that you're advising the business and that might not necessarily involve just rubber stamping or going along with whatever struggle they're trying to get your advice on or trying to implement,” she said.
For Sophie, in a sense, the employment in-house lawyers are treated “a bit like an island”.
“Employment specialists are in this really interesting position where you're building rapport and you're trying to create connections with stakeholders and advise them on matters in one day. Then the very next day, you might be called upon to advise on a matter that might involve that said executive or manager.
Katrina Seck, Senior Writer at Practical Law, says the main value that private practice lawyers can add for in house employment lawyers is the ability to be able to distance themselves from the business and to give the matter undivided attention and a different angle for focus.
"We don't have that challenge that Sophie mentioned, of there being a tension between the ethical and professional obligations of being a lawyer and the commercial demands of the business; our sole objective is to provide legal advice."
The panel noted that in-house lawyers might not always have an employment specialisation sufficient to understand the nuances of employment law (for example, around no-cost jurisdictions under the Fair Work Act), which can be challenging.
"In-house counsel will often come to you with a situation but because they're obviously not specialists in the area, they won't know the type of questions necessarily to ask of a private practice lawyer. And what is required often is a lot of digging around to get to the crux of the issue, and correctly identify all the potential risks. So that can be that can pose its own challenges. But it's also quite rewarding." Katrina said.
"Another challenge, I think that springs to mind is that it's sometimes difficult trying to explain to in-house counsel that applications under the Fair Work Act are traditionally a no cost jurisdiction, which means that organisations have to think long and hard about the benefits of defending proceedings. "
Avoiding the festive season legal hangover
December is riddled with legal risks for employment lawyers to consider for their organisation. Adding another layer to the complexity this year is the ongoing COVID-19 pandemic.
Whether virtually held or not, end-of-year celebrations are a red flag for HR and employment lawyers in a business. Tyrilly invited each speaker to comment on the unique risk situation that organisations are facing this year.
“One risk that sometimes flies under the radar is the risk of a matter increasingly likely to become an issue of vicarious liability for the employer. Particularly now, when we are well and truly into a post #metoo era, and also that the world has taken an increased focus on work health and safety, the issue of vicarious liability I think, is one which should be on the forefront of employers minds, when they're talking about an end-of-year celebration,” said Sophie.
Katrina agreed with Sophie, further adding that it fundamentally comes down to communication on the part of the employer over what it expected. After all, a work Christmas party, albeit after hours, is still an extension of the workplace.
“There's still that nexus between the employment and the function and the out of hours conduct and I think employers as well perhaps need to communicate that disciplinary procedures will still be followed through, despite the fact that employees may be at a workplace function like a Christmas party,” she said.
Does this mean that end of year work parties will be off the table for employers in 2020, given the pandemic-related considerations? Katrina suspects not, though employers will need to consider functions extra carefully this year.
“We've seen things like staggered start times, we've seen changed office configurations, we've seen so many different changes to the way we save work this year, I don't see why that would change when it comes to the Christmas party.”
“Regardless of the fact that there may be looser restrictions in some particular jurisdictions, I really do not think we're going to see big Christmas parties this year for a number of reasons. With the ongoing trend of Friday night virtual drinks and working from home extending to the virtual Christmas party, I think that yes, that we will definitely see the Christmas party moved to a virtual function this year!”
Sophie concluded by suggesting that if employers are looking for an alternative to an onsite end of year function, it helps to keep the organisation's "ultimate aim" in mind:
"What you're trying to show is appreciation to your employees. You're trying to say thank you. You're trying to recognise achievement…I think gift vouchers are a really valid way to do that, particularly where it might be as simple as food vouchers. And that could be very, very important to employees who may be struggling this year. It can be very, very simple and meaningful and achieve the same result."
For further general guidance on this pressing issue for employers, read Katrina and Sophie’s detailed Legal Insight article,Christmas Party Legal Risks at a Glance. Eligible Practical Law subscribers can access additional guidance materials and templates as part of Practical Law's employment law and in-house coverage.