Michael’s practice covers virtually all aspects of employment law, both individual and collective, and trade union internal matters. He is listed as a leading silk in employment law in the directories, including Chambers & Partners (Star Individual) and the Legal 500 (Tier 1). For many years he was a fee-paid Employment Tribunal Judge.
Michael has over 70 reported cases in the sphere of labour law, across almost all subject areas. He has particular expertise in judicial review in the employment sphere, EU labour law and human rights and employment law. His areas of practice include the following:
Working time
Michael acted for the successful claimants in Stringer v HM Revenue and Customs in the ECJ and the House of Lords, establishing that sick workers are entitled to annual leave under the Working Time Regulations and to bring claims for holiday pay as a claim for unlawful deduction from wages. Subsequently, he was instructed in the leading authority on interpretation of WTR to comply with the Working Time Directive, NHS Leeds v Larner, CA. He acted for 1000s of pilots in their successful claims in both the Supreme Court and ECJ in British Airways v Williams and was subsequently instructed in claims for tens of thousands of workers about the level of their holiday pay. He appeared in European Court of Justice and Court of Appeal in Lock v British Gas, on whether commission payments must be included in payment for annual leave. Other important test cases in which he acted include Bear Scotland v Fulton (whether overtime counts towards annual leave), Dudley v Willets (voluntary overtime); Harpur Trust v Brazel (Supreme Court; term-time workers and annual leave); Smith v Pimlico Plumbers (CA, on carry over of unpaid leave); and Chief Constable of the Police Service for Northern Ireland v Agnew (Supreme Court decision on the protective purpose of the deductions from wages jurisdiction).
Industrial action
Michael acted in the first – and only – Supreme Court case to recognise the right to strike, Mercer v Alternative Future Group, in which the Court granted a declaration that the failure of UK law to protect individual strikers against sanctions for participating in strikes was incompatible with Article 11 of the ECHR. He has often been instructed by unions in injunction applications (see e.g. Balfour Beatty v Unite; Metroline Travel v Unite). Cases in which he successfully resisted injunctions on behalf of unions include British Airways v BALPA in the Court of Appeal, the leading authority on ballot and strike notices, and ISS v Mediclean in the High Court, in which Singh J (as he then was) recognised that the right to strike was protected by Art. He has also acted in cases in which the whole workforce has been dismissed for taking strike action, including Davies v Friction Dynamics in which hundreds of dismissed workers succeeded in unfair dismissal claims before the ET, and Balfour Kilpatrick v. Acheson. He was instructed by the RMT in RMT v United Kingdom, in which the European Court of Human Rights held that the ban on secondary action did not infringe Article 11.
Equal pay
Michael has acted in several large public sector equal pay claims, including part-time pensions test cases, both in the employment tribunal and on appeal (see e.g. DEFRA v. Robertson, Abendshine v Sunderland CC, Allen v Unison). He appeared in one of the first “bonus” cases against a local authority (Paterson v Islington), was instructed in the equal pay claims brought against all Welsh local authorities for bonus payments (which eventually settled after years of litigation), similar claims against Reading CC, and acted for 1500 claimants in the prison service who were awarded £4 million in compensation. He represented Mrs Grundy in her successful claim against British Airways, a leading authority on establishing and justifying indirect discrimination in pay (Grundy v British Airways). He appeared in the leading authority on the demarcation line between equal pay and sex discrimination claims: Hosso v European Credit, CA.
Judicial review
Unusually for an employment practitioner, Michael is frequently instructed on judicial review applications brought by public sector workers, including the police. He acted for the EHRC as intervener in the challenge to the introduction of tribunal fees which eventually succeeded in the Supreme Court (R (Unison) v Lord Chancellor). He has represented police officers in judicial review applications in the context of police discipline and pensions (e.g. Salter v Chief Constable of Dorset; R (Chief Constable of Avon) v Police Appeals Tribunal; Clinch v Dorset Police Authority; R (Stunt) v Mallett). He represented the NHS Trust in Gibb v Maidstone and Tunbridge Wells NHS Trust, CA, on whether termination payments were unlawful. Recent notable cases include being instructed by UNISON in the judicial review which led to the government revoking the Public Sector Exit Payment Regulations; acting for the FDA (with Tom Hickman KC) in its challenge to the Prime Minister’s decision regarding bullying by Priti Patel; and successfully representing UNISON in the judicial review claim brought by it and other unions in which led to quashing the regulations allowing employers to replace strikers with agency workers were unlawful (R (ASLEF) v Secretary of State for Business and Trade).
Trade unions
Michael has a particular expertise in relation to trade union law. As well as often advising unions on internal matters, he has acted in High Court challenges based on trade union rule books, in complaints to the Certification Officer and in hearings before the Central Arbitration Committee. He recently acted for Mrs Mercer in the Supreme Court in Mercer v Alternative Futures Group, arguing that the absence of protection in UK law against workers being subjected to detriments because of their participation in lawful industrial action is incompatible with Article 11 of the ECHR.
Discrimination
Michael acted for the EHRC in the test case of Chandhok v Tirkey, holding that discrimination owing to caste was potentially race discrimination; he acted in the important case on reasonable adjustments and disability discrimination, Griffiths v Secretary of State for Work and Pensions; and he represented Jessica Starmer, a BA pilot who succeeded in her complaint that a requirement to work full-time amounted to indirect sex discrimination, in the highly-publicised case of British Airways v Starmer. He appeared in Ahsan v The Labour Party, in which the House of Lords resolved that complaints of race discrimination against political parties cannot be brought before the employment tribunal.
Pensions and TUPE
Michael acted for Ms Beckmann who succeeded in her claim before the ECJ that an early retirement pension, payable in the event of redundancy, transferred under the Acquired Rights Directive and hence TUPE (Beckmann v Dynamco Whicheloe, ECJ). The ruling of the ECJ led to many successful claims in the High Court. He also regularly advises on pension issues and public sector TUPE points. He acted for the successful claimants in the ECJ in Allen v Amalgamated Construction (transfers within corporate groups).
Human rights and employment
Michael often advises on the implication of the European Convention of Human Rights in relation to employment law. He was instructed in RMT v United Kingdom (on the right to strike) and Unite v United Kingdom (on abolition of the Agricultural Wages Board), both of which lost in Strasbourg. He provided submissions for Liberty in a blacklisting case pending before the Court, Smith v UK. He acted for ASLEF in their successful challenge in Strasbourg to the domestic legislation which prevented unions expelling BNP members (ASLEF v United Kingdom), and which led to the government amending s.174 of TULRCA 1992. He appeared in an early case on freedom of protest, Steel, Lush and others v UK, and more recently has acted in injunction claims giving rise to issues based on the Human Rights Act (including claims against unions in the context of “leverage” action). He recently appeared in the Supreme Court in Mercer v Alternative Futures Group, a case which grapples with the Strasbourg case-law on the right to strike, the interpretative duty in s.3 of the HRA and the proper scope of declarations of incompatibility under s.4 HRA. He has written widely on human rights at work, especially on the right to privacy.
Data protection
Michael was involved in the process of drafting the Information Commissioner’s Employment Practices Data Protection Code, giving guidance on the application of the Data Protection Act 1998 to employment. He is the author of Surveillance and Privacy at Work (Institute for Employment Rights).
Other
Michael acts in just about all areas of employment, especially in the context of appeal cases, or claims brought by the whole workforce. Recent appellate cases include Supreme Court appearances in Mercer v Alternative Futures Group, Agnew and Harpur Trust v Brazel; Ryanair and McGinley v Lutz (leading Court of Appeal authority on protection of agency workers); Allen v TRW (contractual redundancy payments); Dutton v. Jones (calculation of redundancy pay when on short-time working), Singh v Bristol Sikh Temple (whether Sikh priest was a worker). Other work includes settling infringement proceedings before the ECJ, drafting an application to the ILO, and advising on appeals concerned with the Agency Worker Regulations and on contractual issues relating to medical professionals. He is currently instructed by many thousands of police officers in their tribunal claim challenging the potential discriminatory effect of the Police Pensions Regulations 2015 on grounds of age, sex and race.
Publications
Michael was formerly an editor of Redgrave’s Health and Safety and of Munkman’s Employers Liability; other publications include:
- ‘Employment Status and Trade Union Rights: Applying Okham’s Razor’ (2022) 51 Industrial Law Journal 717 (with Alan Bogg)
- ‘The Fissured Worker: Personal Service Companies and Employment Rights’ (2019) 49 Industrial Law Journal 35
- ‘The Death of Contract in Determining Employment Status’ (2021) 137 Law Quarterly Review 392 (with Alan Bogg)
- ‘Between Statute and Contract: Who is a Worker?’ (2019) 135 Law Quarterly Review 347 (with Alan Bogg)
- “Employment Tribunal Fees and the Rule of Law: R(UNISON) v Lord Chancellor in the Supreme Court“ (2018) 47 Industrial Law Journal 1
- “Criminalisation of Health and Safety at Work” in Bogg et al, Criminality at Work (OUP: 2020)
- “Legislating for Conflict: The Trade Union Act 2016” (2016) 45 Industrial Law Journal 277 (with Tonia Novitz)
- “Two Conceptions of Worker Privacy” (2002) 31 Industrial Law Journal 135
- “Re-thinking the Notice Rule“ (1998) 27 Industrial Law Journal 220
- Privacy and Surveillance at Work (IER: 1998)
- “Citizenship and Democracy in Industrial Relations“ (1992) 55 Modern Law Review 241
Michael is an Executive Committee Member of the Industrial Law Society and has often given lectures to it and for many other organisations. He is one of the editors of the popular UK Labour Law Blog: https://uklabourlawblog.com/
