Legal's leading role
The 2018 In-house Annual Conference provided plenty of stimulating content for individuals and teams striving to keep up with legal and regulatory changes affecting their sector
It may not have had a formal theme in the title, but this year’s In-house Annual Conference majored in transformation and grappling with the big issues of today.
A full house at the 200 SVS Business Centre in Glasgow, a new venue that proved a good choice, heard from a lineup of speakers both new and returning, but all with something fresh to say about the challenges facing the sector and how to handle them.
Innovative routes to change
This year’s keynote speaker had a different background to most Scottish in-house lawyers, having worked for 20 years with FTSE-listed companies. Now director of legal strategy at pharmaceutical company Shire plc, Claire Debney has also spent 10 years at Reckitt Benckiser, owner of various well-known consumer brands.
While a “passionate” advocate for change, she recognised that it has to start with people, “the emotional heart at the core of what is being created”. They need to feel a connection, have a voice – and even if you believe in what you are doing, it takes them 30 times to hear something they are not familiar with for it to stick in the brain.
Debney showed us various strategies to help this process, all IT-related – people are always using their phones, so make the most of this, she advocated. She created a short video message to build into every email and presentation; she designed infographics with colour coding for key elements; she built an app with quick answers to key questions (can I do X?) and a full download available; and an “i-Legal” presentation explaining a new IT-based approach to contracts and compliance.
One particular piece of advice: when looking at a new IT process, try it with the most tech-illiterate person in the team and see if they can do it!
For their efforts, Debney’s team won the Training Innovation Award at this year’s Legal Week Innovation Awards.
“Building your team” produced a stimulating panel session, courtesy of Norma Shippin, director of NHS Scotland Central Legal Office, Christopher Morgan, senior legal counsel at Weir Group, and Lorna Craig, HR manager at Whyte & Mackay. Each gave a short presentation before questions were taken from the floor. Craig’s HR perspective was valuable: focusing too much on technical skills when recruiting leads to 81% of new hires perceived to be failing in their first year; look for what your candidate wants from the role as well as for their attitude, likeability, preferred work style (team or individual) and how they like to be managed; and beware unconscious bias, especially the tendency for recruiters to select someone like themselves. She and Morgan both favoured personality or psychometric tests (his further point was that they give consistency and a balanced report, when used with two rounds of interviews).
When it comes to motivating a team, Shippin warned of the danger of thinking you have inspired them to buy into a change agenda when, because people don’t like change, they have more likely switched off from the message. Morgan highlighted individuals’ own development plans, including the level of responsibility they want and any travel ambitions, for example; and all emphasised the importance of people understanding the business in which they work and instilling a sense of pride in their own team. ILC member Vlad Valiente, chairing the session, added that he conducts one-to-ones with his staff every month to check that they feel their own needs are being met.
Asked about in-house traineeships in different sizes of business, the panel reminded us of the potential for shared traineeships, or secondment arrangements with law firms. And Shippin affirmed that despite “nervousness” when her office introduced a trainee programme, it had transformed the way the business worked and “they have given back much more”.
How do you assess the transferable skills of a candidate when the in-house team has to be very tailored to its environment? Morgan suggested probing how much research they had done (a private practice skillset “can be very narrow”); Shippin that you look for competences but also relevant experience (“it’s good to have people coming in with new ideas”) – and the induction process is very important for them getting to grips with specialist aspects.
Cloud computing has been with us for a good few years now, but its market worldwide is still a fast-growing one, and there are trends and developments to keep up with. That was the message from Joanne McIntosh and Craig Callery of Pinsent Masons in a session dedicated to the topic. Public sector adoption is still slower, for various reasons including difficulties in the procurement process. Regulated firms in the financial sector have also had issues, but with the cloud now being seen as more reliable, financial institutions are increasingly looking to it for investment and customer service provision.
Like me, you may have been unaware that there are different models within the cloud environment, based respectively on software, platform and infrastructure, with differing supply chains giving rise to different issues. Expectations as to service levels, exclusions of liability and of course data protection issues can all be fertile ground for potential dispute.
Contracts in today’s world
Moving on seamlessly (almost), CMS dispute resolution partner Colin Hutton then took us through “Contract pitfalls in a digital age”. Appropriately billed as “interactive”, this was indeed an engaging session which opened by reminding us just how much has changed even since the early 2000s about how we communicate in doing business, and the platforms we use in doing so. What does that mean for contract law? His message might be summed up as: much past learning is still relevant, and while we have to operate in a fast changing environment, contracts are still functioning as such, and as advisers you should “rely on your training and knowledge, and be curious”.
Recent cases have ruled on “no oral modification” clauses (Rock Advertising v MWB Exchange Centres), voidness for uncertainty (Teekay Tankers v STX Offshore), the meaning of “best” or “reasonable” endeavours (Astor Management v Atalaya Mining), and breaches discovered post-termination (Phones 4U v EE, “a case you should read” – though under appeal); and Hutton said he was involved in two IT-related litigations that raised all of these issues. Whether wet signatures still have a role (a question of risk, and logistics, he suggested), and what time should be regarded as close of business in a digital world (7pm, according to one recent case), were also covered.
Our hosts provided a fine buffet lunch, before DLA Piper’s Kate Hodgkiss launched into an employment law update. Her case law survey ranged over the latest decisions on who is a “worker” (Pimlico Plumbers was just out), sex discrimination (shared parental pay has been causing difficulties, and decisions may have the effect of reducing maternity pay), and process issues, particularly on the reasonableness of an employer’s response.
Hodgkiss then turned to gender pay gap reporting and what had emerged to date, with the EHRC due to start enforcement proceedings against the 1% of non-compliers. (Competitors’ returns might offer learning points for how to pitch your own reports!) She concluded by looking at equal pay audits and how to conduct them, and their role as part of “practical steps for employer protection”.
The theme of data was never far away, and the final panel session, on GDPR, showcased the collective experience in this area of Matthew McIlwaine (RBS Legal) and Kenneth Meechan (Glasgow City Council). Meechan set out the sheer scale of the privacy statement the council has had to prepare to cover all its operations – building a “mirror” website behind its main one, reflecting the content of each section. McIlwaine said he liked people “who think outside the box and do videos” to meet the requirement for clear language; and explained the importance of indemnities in the new world of GDPR-sized penalties. And Meechan had constructed an excellent decision tree to enable GCC to assess the legal basis for processing any given data.
Meeting business needs
How best to meet your organisation’s business needs was the theme of the closing presentation, from Elaine Galletly, GCC’s head of legal and administration. “Business needs” in Glasgow’s case are truly multi-faceted, and delivery involves working in conjunction with many partner agencies, from Scottish Enterprise to the health board to the police. Then there are a number of arms’ length organisations (ALEOs) also to be served – though the trend to set up ALEOs to carry out certain services is now going into reverse.
After this initial overview, and a survey of major projects such as City Deal, Galletly ran us through categories of questions she and her team posed in reviewing whether services were being delivered most effectively. These began with basic service delivery (rationale/operational benefits of current methods? via GCC or in other ways? what outcomes?), and progressed through strategic understanding and direction of travel (key drivers for change?), potential for new service models, best value (financial and non-financial), to accountability and internal/external perceptions of the service. She depicted a legal services team going well beyond acting on transactional instructions or requests for advice, and proactively engaging with GCC colleagues on service review and future delivery.
Coincidence or not, it was revealed at the end of the day that this year’s In-house Rising Star is a GCC solicitor – Sarah Haig, for her work on GDPR implementation, not just within GCC but as part of a programme for local authorities across Scotland. Clearly someone who has taken the team’s ethos to heart.