Ben is ranked as a leading silk by both Chambers & Partners and The Legal 500. Ben acts for employers, employees and trade unions across the whole range of employment, discrimination and industrial relations claims.
Ben appears regularly in employment claims in the High Court, Court of Appeal, EAT, employment tribunals and before the CAC.
As well as appearing regularly in long or complex discrimination claims in the employment tribunals, Ben has developed particular expertise, and has appeared in some of the leading cases, in the following areas:
• Equal pay;
• Belief discrimination and other complex or multiple discrimination claims and appeals;
• Employment status and associated claims for wages, holiday pay and national minimum wage claims;
• Claims for injunctive relief in relation to internal disciplinary and capability procedures;
• Industrial relations, including industrial action injunctions;
• TUPE;
• Employment claims involving breaches of human rights.
Notable cases
Equal pay
• Brierley & others v ASDA Stores Ltd (ongoing) – Acting for ASDA in largest private sector multiple equal pay claim of its kind. An appeal on comparability was heard by the Supreme Court in July 2020; litigation on equal value is ongoing before the ET.
• McNeil & others v HMRC [2020] ICR 515, CA – Acted for claimants in leading case on the test for “particular disadvantage” where disparate impact arises from length of service. At EAT stage ([2018] ICR 1529) Simler J also held that the Supreme Court’s judgment in Essop & Naeem [2017] ICR 640, SC, meant that insofar as the line of authority based on Armstrong [2006] IRLR 124, CA had been understood as allowing employers to rebut a finding of particular disadvantage by showing that the underlying reason for the particular disadvantage was not itself related to the protected characteristic, that could no longer be regarded as good law.
• Wilson v Health & Safety Executive [2010] IRLR 59, CA – justification where difference in pay is due to length of service.
• Gutridge v Sodexo Ltd [2009] IRLR 721, CA – application of TUPE to equality clause and effect of transfer on equal pay limitation period.
• Home Office v Bailey & others [2004] IRLR 192; [2005] 369 & 757, EAT & CA – test for disparate impact; partial justification.
Discrimination
• Bailey v (1) Stonewall (2) Garden Court Chambers Ltd & another, ET (July 2022); EAT (ongoing) – Acted for successful claimant, a barrister, in her high-profile claim against her chambers for discrimination because of her gender critical beliefs.
• Forstater v CGD Europe & others, [2022] ICR 1, EAT; and ET (June 2022) – Acted for the successful claimant in leading case on the threshold for protection of beliefs under the Equality Act 2010, establishing in the EAT that a belief that biological sex is a material reality that should not be conflated with gender or gender identity, is protected. Subsequently acted for the successful claimant at the substantive final hearing before the ET, establishing that she was unlawfully discriminated against because of her beliefs in the termination of her visiting fellowship and the failure to offer her employment.
• City of York Council v Grosset [2018] ICR 1492, CA – Acted for claimant in leading case on the test for discrimination arising from disability under Equality Act 2010, s15.
• Adeshina v St George’s Healthcare NHS Trust & others [2017] EWCA Civ 257; [2015] IRLR 704, EAT – Unreasonable conduct and minority protected characteristic insufficient to shift burden of proof in direct discrimination claim; correct test for bias in appeal panel for purposes of unfair dismissal (see EAT judgment).
• Edie & others v HCL Insurance BPO Services Ltd [2015] ICR 713, EAT – Indirect age discrimination claim arising from harmonisation of terms following TUPE transfer where longer-serving transferred employees lost more beneficial terms than others.
• Okoro & another v Taylor Woodrow Construction Ltd & others [2013] ICR 580, CA – application of limitation period to discrimination claim by agency workers in respect of a decision by the principal to ban them from its site.
• Lisboa v Realpubs Ltd [2011] EqLR 267, EAT – sexual orientation discrimination arising by requiring bar manager to work in environment that discriminated against gay customers.
Employment status, wages, etc
• Harbron & others v Amazon & others (ongoing) – Acting for claimants, who are Amazon drivers, in group action against Amazon and various delivery service providers, claiming holiday pay, national minimum wage and unauthorised deductions from wages.
• Police Overtime Claims Litigation (ongoing) – Acting for inspectors and sergeants who are controllers of Covert Human Intelligence Sources, and for a number of undercover officers, in this group litigation claiming for overtime pay arising from the particular requirements of their roles.
• Aslam & others v Uber London Ltd & others (settled, 2022) – Acted for claimants following remission to the ET by the Supreme Court to determine the extent and value of their entitlements to holiday pay and national minimum wage.
Industrial relations, including industrial action injunctions
• National Union of Professional Foster Carers v CO & others [2021] ICR 1397, CA– Acted for CO in appeal concerning the employment status of foster carers for the purposes of trade union listing under TULR(C)A, s2.
• Brown v UCL, [2021] IRLR 200, EAT– Acted for successful claimant in an appeal in a trade union detriment case concerning relationship between data protection law and union use of employer’s email facilities and whether using of group email distribution lists for union communications involved misconduct which was properly separable from the trade union purpose of those activities.
• Secretary of State for Justice v POA [2018] EWHC 2897 (QB) – Inducement to strike; health and safety and strike action. (Substantive case was subsequently settled.)
• Hartley & others v King Edward VI College [2017] UKSC 39; [2017] ICR 774, SC – Application of the Apportionment Act 1870 to the collective agreement governing the terms of sixth form teachers and correct method of calculating deduction from pay for a day’s strike action.
• Argos Ltd v Unite the Union [2017] EWHC 1959 (QB) – First case to consider the nature and extent of the information required to satisfy the new requirement for a summary of the trade dispute to be included on the ballot paper for industrial action. This case also upheld the union’s right to strike in support of measures sought from a transferor with a view to protecting the position of employees post-transfer, distinguishing UCLH v Unison [1999] ICR 204, CA. An earlier hearing ([2017] EWHC 2046 (QB)) also emphasised the importance of giving 3 clear days’ notice of an application unless there are exceptional circumstances – particularly in light of the increased notice of industrial action which employers now receive under changes introduced by the Trade Union Act 2016.
• British Airline Pilots’ Association v Jet2.com Ltd [2017] ICR 475, CA – Case concerning the scope of statutory collective bargaining in respect of “pay, hours and holiday” pursuant to Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
• Unite v Fowler Welch– Coolchain Ltd TUR1/786/2012 (2013, CAC) – determining correct bargaining unit; method of collective bargaining
• Ritchie v UCATT [2011] EWHC 3613 (Ch) – derivative action; trade union election procedure.
• Talbot v General Federation of Trade Unions [2011] EWHC 84 (QB) – construction of trade union rules.
• British Airways plc v Unite [2010] IRLR 809, HC & CA – a leading strike injunction case.
Injunctive relief in respect of internal disciplinary procedures
• Al Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] Med LR 120, QB; (No. 2) [2015] EWHC 3096, QB – case concerning the proper exercise of the power to exclude a doctor under MHPS in circumstances where relationships between the doctor and his surgical team had broken down, and (in second claim) circumstances in which the Court will intervene to grant injunctive relief to restrain a hearing to consider dismissal on grounds of relationship breakdown.
• Chakrabarty v Ipswich Hospital NHS Trust [2014] Med LR 379, QB – case concerning the process to be followed under MHPS when deciding whether to dismiss a doctor on grounds of capability in circumstances where NCAS have not advised that he is irremediable.
• McMillan v Airedale NHS Foundation Trust [2014] IRLR 803, CA – whether employer can increase sanction on appeal; whether employee can withdraw appeal after re-hearing of facts but before sanction decision.
• Rosenbaum v Ealing Hospital NHS Trust (2014, QB) – claim by consultant urologist for injunction to prevent disciplinary proceedings and lift exclusion/restrictions on practice.
• Lu v Nottingham University Hospitals NHS trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent.
• Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) – claim by consultant psychiatrist to prevent disciplinary hearing proceeding.
• Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med LR 163, QB – claim by consultant paediatrician for injunction to prevent disciplinary hearing proceeding.
Whistleblowing
• Stewart v Foreign Commonwealth and Development Office (ET, ongoing) – Acting for FCDO in whistleblowing claim by an employee who leaked information and emails to the BBC.
• Jahangiri v St George’s University Hospitals NHS Foundation Trust & another (ET, ongoing) – Acting for NHS Trust in high-profile whistleblowing claim by consultant surgeon.
• Beatt v Croydon Health Services NHS Trust (ET, October 2020) – Acted for NHS Trust in relation to remedy in high-value whistleblowing claim.
• City of London Corp v McDonnell [2019] ICR 1175, EAT – Acted for respondent in appeal concerning the correct structure for the tribunal’s analysis and necessary findings in a whistleblowing dismissal claim.
• Day v Lewisham & Greenwich NHS Trust & another (ET, 2018) – Acted for Trust in high profile whistleblowing claim by a junior doctor. Following Ben’s cross-examination of the Claimant, the claim was withdrawn on terms which accepted that the ET would have been likely to find that the Claimant had not been treated detrimentally on the grounds of whistleblowing.
• Zia & others v Brighton & Sussex University Hospital NHS Trust (ET, 2016) – Acted for NHS Trust in complex and sensitive claim (and associated appeals) arising from misuse by employees (doctors) of illicit recording of legally privileged meeting and to what extent their (mis-)use of that material constitutes protected disclosures.
• Pennal v BL Law Ltd (ET, 2013) – Successfully defended firm of solicitors against seven-figure whistleblowing claim by former senior litigator.
Human rights in employment and industrial relations law
• Forstater v CGD Europe & others, [2022] ICR 1, EAT – Acted for the successful claimant in leading case on the threshold for protection of beliefs under the Equality Act 2010, establishing in the EAT that the protected characteristic of belief must be construed so as to give effect to Article 9 rights and, in particular, that a belief that biological sex is a material reality that should not be conflated with gender or gender identity, is protected.
• The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled May 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.
• Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB) – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA.
• Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing.
TUPE
• Argos Ltd v Unite the Union [2017] EWHC 1959 (QB); [2017] EWHC 2046 (QB) – implications of pending/anticipated TUPE transfer for union’s right to call a strike in support of changes sought from transferor to protect workers’ terms post-transfer.
• BT Managed Services Ltd v Edwards & another [2015] IRLR 994, EAT – whether employee on long-term absence and in receipt of PHI is assigned to organised grouping of employees that transferred.
• Metropolitan Resources Ltd v Churchill Dulwich & others [2009] IRLR 700, EAT – leading case on service provision change.
• Gutridge & others v Sodexo Ltd [2009] IRLR 721, CA – application of TUPE to equality clause and effect of transfer on equal pay limitation period.
