Employment lawyers and the changing workforce - are we just playing catch up or are we in the vanguard of change?

20 May 2013

I attended a fabulous Industrial Law Society Conference at the week end.  It was rightly held under the ILS' own version of Chatham House Rules so I cannot attribute views to anyone in particular.  What I can say is that there was a fascinating discussion from a HR perspective, as to where we have got to in terms of today's diverse and atypical workforce - a world away from where we were just a decade ago.

But is it right that human capital managers (strategic HR advisers to you and me) are in the vanguard of change and that us lawyers are forever playing catch up?  I am not at all sure that is fair comment. Employment lawyers are in my view often considerably more forward looking than many lawyers in other fields.  In any event to do our jobs properly we can only advise on the law as it is, and not as we might like it to be.  There are only so many times you can try and push the boundaries of the law when dealing with client affairs.

I do believe we more than play our part in the national debate.  We do so from a position of knowledge, having experience of almost as many  different types of workforce as we have clients.  And the Employment Lawyers Association (of which I should declare I am currently Chair) is regularly advising Government on the shape and content of the law.  True, it is not on every occasion that the Government listens, but that is hardly our fault.  If anyone is to blame for the law playing catch up (or running counter to the trend) arguably it is the lawmakers, not the lawyers.

Take just  one example - age discrimination.  Only a few years ago the idea that you could legislate to outlaw discrimination based on age was commonly greeted with snorts of derision.  But the lawyers could see that if we were serious about looking to address the demographic issues we have in the Western world (ageing workforce, low birthrate etc) such that we needed to do more to bring in and/or keep older members of society in our workforce, there was only going to be one practical solution, and that was to legislate.  Voluntary codes of practice were not going to cut it.  Many employment lawyers then found themselves at the  forefront of the move to introduce new (anti age discrimination) legislation.  Now our kids' generation would regard it as extraordinary that in the ordinary course, prior to 2006 employers were once able to refuse someone a job merely because they considered them "passed it".  How many employers and employees would consider that acceptable today?

No, I believe that in the last two decades employment lawyers can not stand accused of playing "catch up".  We have absolutely played our part in creating the diverse, attypical and more flexible workforce that we have today and should be enormously proud of it.

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