Michael’s practice covers virtually all aspects of employment law, both individual and collective, and trade union internal matters. His listed as a leading silk in employment law in the directories, including Chambers & Partners (band 1) and the Legal 500 (tier 1). For many years he was a fee-paid Employment Tribunal Judge.
Michael has about 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:
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, some of which are now going to the EAT (e.g. Neal v Freightliner). 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) and Harpur Trust v Brazel (Supreme Court;) term-time workers and annual leave) and Smith v Pimlico Plumbers (CA, on carry over of unpaid leave).
Michael is frequently 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 and ISS v Mediclean in the High Court, in which Singh J 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 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.
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 acted 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 settled), 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.
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 representing UNISON in the judicial review claim brought by it and other unions in which it was argued that regulations allowing employers to replace strikers with agency workers were unlawful.
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 is currently acting in Mercer v Alternative Future Group in which the Court of Appeal held that UK law does not provide adequate protection for workers who are subject to sanctions short of dismissal because they took part in lawful industrial action but declined to issue a declaration of incompatibility under s.4 of the Human Rights Act 1998 (the appeal to the Supreme Court is due to be heard in December 2023).
Michael acted for the EHRC in 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 under s.12 of the Race Relations Act 1976.
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 High Court claims in which Michael acted.. 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.
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). He provided submissions for Liberty in a recent 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 and the ECHR The appeal in Mercer v Alternative Futures Group, grapples with the case-law of the European Court of Human Rights on Article 11 and the right to strike, as well as the interpretative duty in s.3 of the Human Rights Act and the scope of declaration so fin compatibility. He has written widely on human rights at work, especially on the right to privacy.
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).
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 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.
Michael was formerly an editor of Redgrave’s Health and Safety and of Munkman’s Employers Liability; other publications include:
- ‘The Fissured Worker: Persona Service Companies and Employment Rights“ (2019) 49 ILJ 35
- ‘The Death of Contract in Determining Employment Status’ (2021) 137 LQR 392 (with Alan Bogg)
- ‘Between Statute and Contract: Who is a Worker?’ (2019) 135 LQR 347 (with Alan Bogg)
- “Employment Tribunal Fees and the Rule of Law: R(UNISON) v Lord Chancellor in the Supreme Court 47“ (2018) ILJ 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 ILJ 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 a member of the Institute of Employment Rights, of the Industrial Law Society and of the Employment Lawyers’ Association, and has given lectures and talks for all of these organisations as well as to many others. He is one of the editors of the popular UK Labour Law Blog: https://uklabourlawblog.com/