Shaping Employment Law | My Committee Experience

Katie Russell – a member of the Employment Law Committee at the Law Society of Scotland and Partner at Burges Salmon LLP – offers some insight into the Employment Law Committee and why she decided to join.

The work of the Law Society of Scotland is supported by a number of committees, which are populated with practitioners, academics and lay persons who come together to assist in the delivery of the Law Society’s strategy. In particular, the Public Policy Sub-Committees support the Law Society’s aim in influencing the creation of a fairer and more just society and being an international centre of excellence in thought leadership, through the development of positions relating to public policy.

This sounds very grand (and I suppose it is), but for me it is something simpler – it is an opportunity to give something back to the profession and the discipline that has shaped my career. I have also met some really interesting people along the way, and together we’ve had the opportunity to comment on legislation that will impact on communities and working people across Scotland.

Why I joined?

There are a number of different disciplines which sit underneath the Public Policy Committee umbrella – I am an employment lawyer and so applied to join the Employment Law Committee in autumn 2020. I saw it as an opportunity to actively participate in policy formation relating to employment law, the operation of the tribunal system and the development of the law in a fair and reasoned way. At its core, our role involves safeguarding basic employment rights and preventing the law from moving backwards.

As a lawyer, I feel a sense of responsibility to actively participate in the development of laws and policies. Participating in the committee has been a hugely rewarding experience for me. I have particularly enjoyed the team approach the committee takes, as well as collaborating with government agencies and other committees.

How does the committee operate?

The committee is comprised of a group of employment law specialists from a variety of backgrounds: some members of the committee, such as myself, have a background of working in commercial firms that typically act for the respondent; other members have a claimant-focused background; some work in the charity sector and others in academia.

We proactively monitor and review proposed reforms to law or public policy affecting our area. We also engage with government, their agencies and other stakeholders in relation to proposed law reforms.

What this looks like in practice, is that we will usually appoint a group of two or three committee members to do a deeper dive into a particular proposal, to prepare comments and share these with the committee.

Highlights from the last year have included commenting on proposals on the development of the law including in relation to: restrictive covenants; flexible working; sexual harassment in the workplace and non-disclosure agreements in a workplace setting.

We have also collaborated with the Post-Brexit Policy Working Group at the Law Society to advise them on matters relating to employment law and immigration. We were tasked to identify those areas which are likely to be reviewed, reformed and/or abolished in the coming years. This really highlighted the importance of the committee for me, as post-Brexit reforms will be a central element of the evolution of employment law in future years.

A personal highlight was being involved in preparing the response to the consultation on the use of non-competes - this involved an examination of the position under Scots law and a comparison with continental systems including those that require former employees to be compensated for post-termination restrictive periods. I was surprised when we were invited to speak with the Department for Business, Energy & Industrial Strategy (BEIS) who were leading on the consultation – the discussion with them involved explaining the nuances of Scots contract law and the impact on their proposed reforms, including the fact that consideration is not an essential element under Scots law to form a contractual obligation, compared to the position in England and Wales.

How do we meet?

We meet four times a year. Our meetings are chaired by the committee Convener, who is supported by our Secretary.

When I joined, we were still subject to Covid restrictions and so, at this point, the committee meetings were understandably all online. Despite the constraints associated with the pandemic, our committee managed to fulfil its planned four meetings across the year.

Since the pandemic, we have continued to meet remotely and have also held a hybrid meeting. This was a great opportunity to meet committee members in person – it also allowed those who couldn’t attend in person to continue to participate.

For me, it has been an opportunity to learn from other practitioners and to approach an area of law from differing perspectives. We have all had different interactions with the law and different experiences of how we use the law in our roles. Observing this diversity in thought, in action, is really rewarding.

Should you join?

I hope that this blog helped to demonstrate the role of the Law Society and its committees, and specifically the impact that the Employment Law Committee can have on our day-to-day lives. I am very grateful to have had the opportunity to create a collective voice on these topics.

To those that are curious, I say ‘give it a go’.