Letters roundup - 7 October 2019

NHS failing on fetal monitoring

Your news item ‘NHS Resolution says liability admitted within months’ (26 September) paints a misleading and rosy picture of how the NHS handles the aftermath of birth injury cases.

The system is still fraught with difficulties. 

I, like many other clinical negligence lawyers reading this, will know that the reality is very different. I have one client who has so far waited six months for the Healthcare Safety Investigation Branch to complete the investigation into the death of her baby.

It’s all very well recognising ‘the potential for duplication in the current investigation landscape’ when no clear action plan exists to tackle it.

As a former nurse, I stand by the old adage that prevention is better than cure. It is striking that midwifery and obstetrics training still fails to routinely hammer home the importance of fetal monitoring.

Stephanie Prior
Head of clinical negligence and child abuse litigation, Osbornes Law, London NW1

Law is a matter for parliament

From the perspective of a criminal defence solicitor, I was both transfixed by the proceedings and elated by the result of the Supreme Court hearing on the prorogation of parliament. 

No matter what sparked the proceedings, the way the matter developed has raised one of the most important constitutional issues for decades, if not the century. Despite the outcry of those who have been either unwilling or unable to see the wood for the trees, the proceedings were not at all about Brexit – they were about the relationship between the executive and the legislature within a properly functioning Westminster system of government.

For years now, we have trudged to court with increasing dismay as our clients’ ability to mount a defence has been stripped away by secondary legislation.  Every time the legislature passed a law giving the executive significant powers to make regulations designed to make conviction a formality, our hearts have sunk lower and lower. This situation has been allowed to develop over many years by the two-party system, first-past-the-post and whip. ‘Government’ has become a single, indistinguishable mix of a majority parliament and civil ministers, all members of the same political party, with executive actions becoming rubber-stamped laws passed for political gain by a compliant parliament subject to the whip.

It took a few years of coalition government to highlight how cosy things had become. We trust that the Supreme Court decision will make a significant contribution to restoring the relationship between the separate arms of government so that fairness and justice in our criminal courts can once again become a matter of law for parliament, rather than policy for the civil administration.

HD Kehler
Howell Hylton Ltd, Camborne

Age discrimination is rife

In recent years anti-discrimination and pro-opportunity campaigns have made much progress within the profession. Those campaigns have centred on women’s, BAME and LGBT+ rights and opportunities. I have nothing but support for initiatives promoting anti-discriminatory attitudes and practices.  

However, nothing is being said (and even less is being done) about age discrimination within the profession.

Age discrimination can afflict anyone. The people most affected are those with too little experience and those apparently with too much. I feel that those with too much experience are largely hidden from view. I know that they are out there, as recruitment agencies frequently tell me that they have a number of senior candidates on their books looking for work and that there is a lack of senior roles available.

In the last year I have noted the following remarks, all referring to the recruitment of in-house lawyers for both permanent and interim roles:

• You are a UK-qualified lawyer, with 5 to 10 years of experience;
• You will have at least 10 years’ experience in private practice and or/in-house experience (there is no upper limit of PQE in this position);
• You cannot be put forward for this role, as they want to protect the head of legal who is only 10 years’ qualified and has said that he will not work with anyone with more experience;
• For the majority of the roles, the employer is looking for candidates within the 3-6 years’ PQE bracket and will not look outside that range. Unfortunately, we don’t get many senior positions and most of our roles are 8 years’ PQE and below. We always ask our clients whether they would consider people outside the bracket, but nine times out of 10 they will not. 

In my view, PQE is no different to a company requesting a desired level of experience in order to fulfil the duties of the role. All the statements above point to direct or indirect discrimination on the grounds of age. They all contain a reference to post-qualification experience. 

PQE is a measure of age. ‘Zero’ happens to occur somewhere in your mid-20s and constitutes the date on your admission certificate. With a knowledge of when most solicitors qualify, specifying PQE gives a good approximation of age. There are solicitors who qualify later in life, but they are few in number and certainly too few to negate the rule.  

Accordingly, to say that there are no roles for lawyers with more than 10 years’ PQE is to say that you have no roles for lawyers aged over about 35. Given the relative standard of experience between, say, a 10-year and a 20-year qualified lawyer, the distinction seems meaningless – except to discriminate.

Age discrimination is not victimless discrimination. Those most acutely affected are the ones most likely to need a job. The money earned will pay for mortgages and food. No job means poverty, the risk of homes being repossessed and a bleak future. 

I would like to see age discrimination challenged like sex and race discrimination. The law is basically the same. 

I encourage all HR teams to challenge prejudice where they find it and request that professional colleagues think carefully about whether citing PQE is necessary.

Name and address supplied