Melanie’s practice embraces all aspects of employment and discrimination law. She has acted for employers and employees in every sector of activity, including the health, education, local government, manufacturing and financial sectors. She has had 29 appearances in the IRLR.
Discrimination
Melanie has appeared in cases involving virtually every strand of discrimination law. Leading cases include:
- Griffiths v Secretary of State for Work and Pensions EWCA 1265, in which the Court of Appeal held that the duty to make reasonable adjustments for a disabled employee may require an employer to make adjustments to an attendance management policy;
- Ministry of Defence v Holloway and others UKEAT/0396/14 28: whether the employment tribunal has jurisdiction to entertain complaints of discrimination by the spouses of members of the armed forces who are employed in the Sovereign Base Areas in Cyprus;
- British Airways plc v Mak and others ICR 735 CA, in which it was held that the age and race discrimination legislation applied to cabin crew who were based in Hong Kong but worked on flights between Hong Kong and the UK;
- Sunderland City Council v Brennan and others ICR 1183: employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability (Contribution) Act 1978;
- Webley v DWP ICR 577 CA: failure to renew fixed-term contract cannot constitute less favourable treatment under Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
- Chief Constable of West Yorkshire v Khan ICR 1065 HL: meaning of victimisation;
- Jones v Post Office ICR 805 CA: justification under the DDA.
Equal pay
Melanie has substantial experience of equal pay claims, having appeared in cases involving the public and private sectors, acting for both claimants and respondents. Significant cases include:
- Drummond and others v Fife Council: equal pay claims by more than 1400 low paid council workers in which a multi-million pound settlement was negotiated;
- Loudon and others v North Lanarkshire Council: a wide-ranging challenge to the council’s job evaluation scheme and pay protection arrangements which resulted in a substantial settlement;
- Armstrong and others v Newcastle Hospitals NHS Trust (No 1) IRLR 124 CA and Armstrong and others v Newcastle Hospitals NHS Trust (No 2) ICR 674 EAT: the correct approach to the GMF defence in cases involving indirect discrimination in pay;
- Preston and others v Wolverhampton Healthcare NHS Trust (No 1) ICR 217 HL: the part-time pensions claims.
Transfers of undertakings
Melanie is a leading expert on transfers of undertakings and service provision changes. She has recently appeared in two important TUPE appeals in the Employment Appeal Tribunal: Mustafa and another v Trek Highway Services Ltd and others UKEAT/0063/15 29 (an appeal concerning the effect of a suspension of operations by an outgoing subcontractor) and Arch Initiatives v Aulton and others UKEAT/0063/15 21 (in which the central issue was whether there can be a service provision change if a service is split into separate functional components when the contract is re-tendered).
Melanie represented the claimants in UNISON and others v Careers South West and another, in which an employment tribunal decided that TUPE applied when new contractors were appointed to run the National Careers Service in the south-west of England. She also appeared in Mrazek and others v Equality and Human Rights Commission, a case involving a challenge to the validity of changes in terms and conditions which had been agreed more than a year after a TUPE transfer.
Melanie’s reported TUPE cases include:
- De’Antiquis v Key2Law Surrey LLP IRLR 272 EAT: application of automatic transfer principle where transferor is in administration;
- Alamo Group (Europe) Ltd v Tucker and others ICR 829: transfer of liability for failure to inform and consult;
- Ralton and others v Havering College of Further Education IRLR 738: test to be applied in deciding whether transfer is reason for dismissal and application of TUPE to fixed-term employees;
- Kerry Foods Ltd v Creber and others IRLR 10: nature of duty to consult where transferor is in receivership.
Unfair dismissal, whistleblowing and other statutory rights
Melanie has extensive experience of unfair dismissal and whistleblowing claims. She has also acted in disputes concerning other statutory rights, including claims under the Working Time Regulations 1998 and the National Minimum Wage Regulations 1999. She successfully defended the respondent in Royal College of Nursing and others v Real Life Options, in which the RCN and members of that union were challenging dismissals designed to bring about significant changes in terms and conditions of employment.
Melanie’s reported cases concerning statutory employment rights include:
- Ashcroft v Haberdasher’s Aske’s Boys School ICR 613 EAT: time limit for presenting a complaint of unfair dismissal where employee has presented internal appeal;
- Roberts v West Coast Trains Ltd ICR 254 CA: dismissal expunged by successful appeal;
- ALM Medical Services Ltd v Bladon ICR 1444 CA: tribunal failed to consider evidence relevant to a whistleblowing claim;
- Everson v Secretary of State for Trade and Industry (C-198/88) ECR I-8903 ECJ: guaranteed debts in a cross-border insolvency.
Contracts of employment and employee competition
Melanie regularly acts in and advises on disputes involving restrictive covenants, garden leave, wrongful dismissal, contractual bonuses and other contractual issues. She appeared in Equality and Human Rights Commission v Earle IRLR 845, in which the issue was whether employees of the EHRC had a contractual right to pay progression which could be enforced notwithstanding the government pay freeze.
Labour relations and industrial disputes
Melanie has wide-ranging experience of collective issues, including collective consultation and industrial action. She is currently advising a leading trade union on issues arising from the Trade Union Bill 2015. Melanie has also acted in recognition disputes, including applications to the CAC. Reported cases include:
- Kelly and another v Hesley Group Ltd IRLR 514, an important decision of the EAT on the scope of the duty to consult in relation to collective redundancies;
- Cooper v Isle of Wight College IRLR 124: deductions from pay where an employee has taken part in industrial action.
Trade union rights
Melanie has substantial experience of claims involving trade union rights. For example she:
- appeared in Mihaj v Sodexho Ltd ICR D25, in which the EAT explained the approach that an employment tribunal should take when considering an application for interim relief by a trade unionist alleging dismissal for taking part in trade union activities;
- represented the claimant in Kelly v Equality and Human Rights Commission, a complaint of trade union victimisation which resulted in the highest ever award of compensation for injury to feelings in respect of victimisation on trade union grounds;
- successfully defended the respondent in Grant v UNITE, a complaint by a union member that he had been subjected to unjustifiable discipline.
Melanie frequently deals with employment disputes that raise questions of public law. She acted for UNISON when Plymouth City Council attempted to withdraw recognition from the union, a dispute which involved very sensitive industrial relations considerations and issues of public law. She also has extensive experience of the legislation governing universities and institutions of further and higher education. (During her career as a solicitor, Melanie was, for a number of years, legal adviser to the Polytechnics and Colleges Employers’ Forum and to the Association of Colleges).
Melanie is often instructed in employment cases with a pensions element, including claims for enhanced redundancy pay. Notable cases include:
- Martin v South Bank University (C-4/01) ECR I-12859 ECJ: claims relating to early retirement benefits;
- Smith v South Wales Fire Rescue Service Appeal no CF136/, an appeal to the High Court from a decision of the Pensions Ombudsman on whether certain allowances paid to regular firefighters were pensionable;
- Stevens v Chief Constable of West Yorkshire Police, Leeds County Court: entitlement to sick pay under the Police Regulations 2003.
Melanie has represented and advised employers and employees in relation to internal disciplinary proceedings. She recently acted for a well-known university in internal grievance and disciplinary proceedings involving a very senior member of its academic staff.
Melanie has appeared for professional employees in proceedings before professional regulatory bodies, including the Specialist Training Authority and the GMC. She has also dealt with applications for injunctive relief to enforce contractual disciplinary procedures and/or the Department of Health Framework “Maintaining High Professional Standards in the Modern NHS”.
