In a segment
shamelessly stolen borrowed from the ill-fated BBC Four programme The Late Edition I look at RBS Mentor, their advice on zero hours contracts and why they’re in the news.
What’s the deal with RBS Mentor and Zero Hours Contracts?
RBS Mentor are part of the RBS Group and offer legal advice to businesses based on an annual payment calculated on the size of the business. The RBS Group has the UK Government as it major shareholder following a bail out of the bank in the late 2000s. The Independent reported that they are helping “hundreds” of these businesses to draft zero hours contracts and describes the story as a “storm”.
Why are Zero Hours Contracts controversial?
Some people are concerned that zero hours contracts can be used as a tool by unscrupulous employers to keep a low-cost workforce with limited employment rights and on low pay. The Department for Business, Innovation and Skills were concerned enough about this to launch a consultation to see if there are changes that should be made to the law regulating them; in effect this is currently none.
How come RBS Mentor advising on this is news?
In short, the concern is that because RBS is owed by the government it should not be involved in advising on contracts which are seen as driving down wages and increasing welfare spending according to some. It is debatable whether or not this is actually the effect as there is very little evidence. There is also some suggestion in the article that RBS Mentor is foisting the contracts on businesses. There is no evidence at all presented in the article to support this however.
Who should be concerned about this?
In short, no one. This is (at least in my view) a complete non story. In essence the headline to the article could be written as “Lawyers give advice to their clients who have asked for it and paid for it” or “There might be some illicit behaviour going on but we really don’t have any evidence beyond one case and even then we’re not really sure what happened”.
A lot of the concern about this centres on the fact that in some way a publicly owned company should not do something that people disapprove of. To put this the opposite way round, assume that the much maligned Public Defender Service was advising someone accused of a crime. The defendant did it and knows that he did, but his representative sees a problem with the identification evidence which could and eventually does secure an acquittal. Very few people would be happy that a “guilty” person had got off, but even fewer when confronted with the same situation if they were in it would suggest that the lawyer should somehow hold back advice that they know could benefit their client.
Leaving aside professional duties to act in a client’s best interests, something very dangerous happens when people’s ability to get the best advice available to them is curtailed based on whether other people approve of it or not. I like to avoid sounding like Richard Littlejohn where possible, but if this right to obtain legal advice is curtailed, it’s not a long step to other more important areas being closed off.
So my take on this is, yes disagree with the concept of zero hours contracts, but so long as they’re legal let’s not demonise people giving legitimate advice on them; at least until there’s some proof that the advice is being given in bad faith.
I do think there is something to be thought about in the way that lawyers give legal advice, what clients do with that advice and what the wider impact then is. Basically, I think there can be a ‘when what you’ve got is a hammer, everything looks like a nail’ problem.
For example, a lawyer asked ‘How can I structure my business in order to reduce the chances of getting into an employment tribunal?’ is bound to suggest something like a zero-hours contract. It’s the legal solution to the problem being presented. But this may well miss the wider context.
Which is why the best advisory lawyers try hard not to just give narrow legal advice, but understand the business situation as a whole. And why clients need to understand that an employment lawyer isn’t necessarily the only person they should be talking to about this sort of thing. A good HR person or front-line manager may have the wider view to say ‘Well, a zero-hours contract will solve this problem over here, but it might well create another problem or two — such as damaging morale and worker retention.’