Stuart Brittenden

Stuart’s principal areas of practice include: collective redundancies; discrimination (all categories of protected characteristics under the Equality Act 2010, as well as fixed-term employees, part-time workers, agency workers, trade union members, blacklisting); equal pay; negligent references; permanent health insurance (PHI); protected disclosures/whistleblowing; TUPE; unfair and wrongful dismissal; union recognition and disclosure of information for collective bargaining (CAC proceedings). In addition, he also has experience of professional negligence (usually employment law related).

He is frequently instructed to advise in respect of bonus/contractual disputes; confidential information; fiduciary duties; interim relief; and restrictive covenants/restraint of trade. His particular interest lies in the areas of discrimination, equal pay, and employee competition/restraint of trade/fiduciary duties.

Publications:
His principal publications in the employment field include:

• Employment Precedents & Company Policy Documents(eds HHJ McMullen QC/Jeffreys/Julyan)(Sweet & Maxwell) – (1) Grievance & Disciplinary Procedures; (2) Union Recognition/collective redundancies; and (3) Works Councils
• Munkman on Employer’s Liability(Lexis Nexis UK) – author of 2 chapters. 17th Edition, 2019
• Westlaw Insight Employment Law Encyclopaedia (2012-) – author of various chapters
• Labour Law Highlights(2012- 2020) Institute of Employment Rights (eds. Rebecca Tuck QC & Betsan Criddle)

Interim relief/confidential information:

Recent advisory/litigation experience in this field includes:

• Greenstein v UNISON QB-2019-004352:resisted interim injunction to restrain disciplinary process;
• BALPA & Anor v BA Cityflyer [2018] EWHC 1889 (QB):instructed by BALPA in its application for interim declaratory relief. High Court provided guidance on relatively untested CPR Part 25.1(b)(junior to O. Segal QC);
• Successfully obtained ex parte injunction in the Chancery Division to restrain use of covertly recorded privileged material and delivery up of recording/transcripts: Brighton & Sussex University Hospitals NHS Trust v Zia & Ors;
• Successfully represented Trust to resist application for interim relief; alleged breach of disciplinary procedure: Dunn v Basildon & Thurrock University Hospitals NHS Foundation Trust [2013] EWHC 3636 (QB);
• Successfully defended law firm against application for interim relief preventing use of confidential information (covert recording of private discussions in collective bargaining process) Syncreon Automotive (UK) Ltd v Unite the Union & Thompsons Solicitors [2009] EWHC 437;
• Instructed on various confidential matters advising in respect of team moves, post-termination restrictions/confidential information; dismissal in breach of contractual capability procedure.

Stuart has extensive and diverse experience acting for trade unions including defending injunction applications; applications for interim relief; applications before the Certification Officer, and appearing before the Central Arbitration Committee (recognition, disclosure of information for collective bargaining purposes).

Rule Books

Stuart has been called upon by various trades unions to advise upon the interpretation of rule book provisions; re-drafting rules; and to undertake a wholesale review of rules. He has drafted amendments to comply with the changes introduced by TUA16 in relation to political funds.

He successfully appeared for the union in Greenstein v UNISON QB-2019-004352 (resisting interim injunction to restrain disciplinary procedure), and also Kelly v Musician’s Union [2020] IRLR 809 CA (rule books, disciplinary procedures).

Industrial Action

Recent experience includes:

• Ryanair DAC v BALPA [2020] IRLR 698: industrial action, injunctions (junior counsel to A. Burns QC);
• Royal Mail Group Ltd v CWU [2020] EWHC 842 (QB): resisting summary judgment application;
• Secretary of State for Justice v Prison Officers Association [2020] IRLR 196 Div Ct: contempt; Art. 11 ECHR (junior counsel to H. Southey QC);
• Royal Mail Group Ltd v CWU [2020] IRLR 213 CA; [2020] ICR 940; The Times, March 12, 2020:industrial action – whether there was interference with the ballot under s. 230(1) TULR(C)A 1992; requirement to send ballot to home address (s. 230(2)); whether voting in secret – de minimis (junior counsel to Lord Hendy QC);
• Birmingham City Council v Unite the Union and UNISON [2019] IRLR 423:seminal decision on whether industrial action was unprotected under  s.222(1)(b) (prohibition on discrimination)(junior counsel to Segal QC);
• British Airways v BALPA– part of legal team instructed to advise on ballot and notices (junior counsel to Michael Ford QC);
• Thomas Cook Airlines Ltd v BALPA [2017] EWHC 2253 (QB); [2017] IRLR 1137:successfully represented the pilot union in the first decision under s. 229(2D) TULR(C)A 1992 concerning the amount of information required on the ballot paper as to the expected period of industrial action (junior counsel to Oliver Segal QC);
• Ministry of Justice v Prison Officers’ Association [2018] ICR 181;The Times 20 Sept. 2017 (Jay J): inducement of prison officers to withhold their services, s. 127 CJPOA 1994; collective withdrawal from non-contractual/voluntary duties did not constitute actionable inducement at common law (junior counsel to Lord Hendy QC);
• Govia Thameslink Railway Ltd  v ASLEF (No. 3) [2016] EWCA Civ 1309; [2017] 2 CMLR 24; [2017] ICR 497; [2017] IRLR 246 : art 49, 56 TFEU (seminal decision examining the reach of the TFEU fundamental freedoms to industrial action, and the application of Viking, Laval, Holshipto industrial action on Southern)(junior counsel to Oliver Segal QC);
• Govia Thameslink Railway Ltd v ASLEF (No. 2) [2016] EWHC 1320 (QB); [2016] IRLR 686 (Supperstone J):‘prior call’ (s. 233), ballot constituency (s. 228A), trade dispute (s. 244) (junior counsel to Lord Hendy QC);
• Govia Thameslink Railway Ltd  v ASLEF (No. 1) [2016] EWHC 985 (QB)  (Langstaff J): inducement to breach contract (junior counsel to Lord Hendy QC);
• Secretary of State for Education v NUT [2016] EWHC 812 (QB); [2016] IRLR 512 (Kerr J):seminal decision on trade dispute with Minister of the Crown (s. 244(2)(b)), interim declarations (junior counsel to Lord Hendy QC);
• POA national day of protest re prison safety: instructed to represent POA in short notice application by SofS (Nov, 2016);
• POA Wormwood Scrubs: instructed by POA in relation to the refusal of officers to attend work on safety grounds;
• R (on the application of Unite) v Northampton General Hospital NHS Trust: judicial review/ interim injunction sought to restrain the use of agency staff during an employer’s lock-out contrary to reg 7 of the Conduct of Employment Agencies and Employment Businesses Regulations, SI 2003/3319;  and inducement of an offence under s. 5 Employment Agencies Act 1973 (junior counsel to Lord Hendy QC);
• Olympic Bus Drivers’ Bonus Dispute–  (2nd junior to Lord Hendy QC and Michael Ford QC).

Trade Union Recognition/Collective Bargaining

• Kostal UK Ltd v Dunkley & Ors [2020] ICR 217 CA; [2019] IRLR 817: first appellate decision on scope of s. 145B (inducements). Permission to appeal to Supreme Court granted 11.2.20;
• R on the application of Condor Marine Crewing Services Ltd, CAC and Nautilus International CO/2911/2020: instructed by union to oppose application for judicial review of CAC decision to accept union’s application for recognition;
• Instructed to represent Unite members for the return date in the Birmingham waste management dispute: (1) Taylor & Ors; (2) Unite v Birmingham City Council HQ17X03282(junior to O. Segal QC);
• BALPA v Jet2.com Ltd [2017] EWCA Civ 20; [2017] ICR 457; [2017] IRLR 233: instructed by BALPA in the Court of Appeal successfully overturning the High Court ruling [2015] IRLR 543 as to the scope of negotiating rights for the purposes of para 3(3) Sch A1 of the 1992 Act (junior to B. Carr QC);
• Corrigan v University of Bolton EWCA A2/2016/0265– s. 152 selection of union representative for redundancy, principal reason for dismissal, burden of proof: permission obtained to challenge EAT ruling in Court of Appeal;
• Unite v American Airlines TUR1/955(2016) CAC: successfully sought recognition of Aircraft Maintenance Technicians as a separate bargaining unit under Sch A1 where Unite was already recognised for a wider bargaining group;
• BALPA v easyJet CAC:disclosure of information crew food costings and ancillary matters;
• Unite v Fujitsu Services Ltd DI/7/(2014) CAC: successfully represented Unite in the first CAC decision seeking disclosure of information for collective bargaining under s.181(2) from a parent company in respect of information concerning a subsidiary.

Certification Officer

Recent experience includes:

• Kelly v Musician’s Union [2020] IRLR 809 CA (implied term operated to permit expulsion of member)(junior to Oliver Segal QC)
• Parlour v NASUWT D/19/19-20, 1 October 2019: lawfulness of appointment of General Secretary locum tenentes
• Parlour v NASUWT (Northern Ireland CO) D/03/2019: successfully resisted claim that National Officers held office in breach of rule; TES 1 November 2019
• Coyne & Brooks v Unite: instructed by Unite (junior to Oliver Segal QC)
• Penkethman & Ors v CWU: successfully represented CWU resisting complaint of failure to comply with campaign rules, failure to receive ballot paper
• Abrahams & Ors v URTU: instructed to represent Union
• Mr & Mrs Street v UNISON D/1/15-16: successfully resisted complaint about not holding a branch AGM whilst placed under in regional supervision; implied terms – Rule Book; disapplication of rules – dysfunctional branch; custom and practice
• Chapman v Community CO/784177/2015-16: first CO decision clarifying that the implied term of trust and confidence does not apply to a union Rule Book, but an implied duty of cooperation is engaged; expulsion of member in breach of rules.

Public law experience includes:

• R on the application of Condor Marine Crewing Services Ltd, CAC and Nautilus International CO/2911/2020: instructed by union to oppose application for judicial review of CAC decision to accept union’s application for recognition;
• Mosekari v Lewisham LBC [2015] E.L.R. 31: successfully represented Lewisham in resisting application brought by a long-serving teacher for exemption from mandatory induction period following award of QTS;
• DC Dawes v Chief Constable of South Yorkshire Police (Admin) CO/1025/2016: obtained permission from Kerr J to challenge the Chief Constable’s refusal to allow an officer to retire upon reaching compulsory retirement age under A18 of the Police Pension Regulations 1987;
• Represented an office holder seeking to judicially review their removal from office in breach of requirements of natural justice (applying the principles inRidge v Baldwin [1964] AC 40; Malloch v Aberdeen Corporation [1971] 1 WLR 1578; McLaughlin v Governor of the Cayman Islands [2007] 1 WLR 2839 PC; and Shoesmith);
• R (on the application of Unite) v Northampton General Hospital NHS Trust:judicial review/ interim injunction sought in the Admin Court to restrain the use of agency staff during an employer’s lock-out contrary to reg 7 of the Conduct of Employment Agencies and Employment Businesses Regulations, SI 2003/3319;  and inducing an offence under s. 5 Employment Agencies Act 1973 (junior counsel to Lord Hendy QC);
• Advice in relation to the application of 149 EqA 2010(public sector equality duty) in the transport sector;
• Advice in relation to whether the decision of the Home Secretary to revoke licences for Detention Custody Officers under the Immigration & Asylum Act 1999 (Sched 11 para 7(1)) was art. 6 ECHR compliant;
• Advice on judicial review of the education Admissions Code and Guidance in relation to summer born babies, and placement of children outside of normal age group.

Prior to joining chambers, Stuart attained a Masters in Labour Law at the London School of Economics (LSE), and worked as an employment law advisor to the British Dental Association (BDA).

Stuart has experience of internal and professional disciplinary proceedings particularly involving matters of clinical law and practice, and compliance with research protocols and associated regulatory requirements. Stuart frequently provides employment advice and representation within the health sector (including NHS Foundation Trusts and GP/Dental Practices) and is instructed by the leading firms of solicitors operating in this field.

He has experience of providing representation and advice in internal and professional disciplinary proceedings under Maintaining High Professional Standards in the Modern NHS (MHPS), and in respect of applications for interim injunctions seeking to compel compliance with MHPS.

Stuart has acted for registrants before the Health and Care Professions Council (HCPC) and is familiar with the HCPC Standards of Conduct, Performance, and Ethics, having undertaken cases involving the HCPC Standards of Proficiency in respect of psychologists and speech therapists. He has also appeared before the Nursing and Midwifery Council (NMC).

Outside of the health sector, Stuart has appeared in other internal procedures, for example providing representation in University disciplinary matters (under University Statutes), and has acted on behalf of Essex Fire Authority in disciplinary proceedings. He has also appeared before the Institute of Management Consultants.

Stuart also sits as an occasional member of the International Paralympic Committee (IPC) disciplinary panel member adjudicating upon anti-doping rule violations (ADRV).

Stuart is an employment law specialist with extensive experience advising in respect of disciplinary and grievance matters, particularly involving dishonesty/breach of trust and confidence, discrimination (including harassment and victimisation) and whistleblowing. He is ranked as a Band 1 Employment specialist in both Chambers & Partners and The Legal 500. He has been commended by the former as being “bright and engaging”, “highly supportive”, impressing clients for his “responsiveness, pragmatism and thorough preparation” as well as being a “highly competent and clear adviser”. Stuart “… is able to analyse complex matters in an extremely practical and commercial way” and is someone who “thinks ten paces ahead and is very good on his feet.”

He has been instructed to conduct grievance investigations into bullying and harassment in the education, financial, and sporting sectors; supported disciplinary and grievance investigations undertaken in house; acted as chair in internal appeals against dismissal, and has also acted as adviser to internal disciplinary panels. Stuart has on numerous occasions presented the Management Case in the health and HEI sectors.

He is an ad hoc panel member on the International Paralympic Committee (IPC) Anti-Doping Committee which involves adjudicating upon anti-doping rule violations and determining sanctions (ADRV).

Stuart has provided training on investigations and disciplinary procedures (to NHS Trusts and the Probation Service), and has published extensively on both disciplinary and grievance procedures (Employment Precedents Grievance and Disciplinary procedures; and Westlaw Insight). He is able to accept public access instructions.

• Kelly v Musicians’ Union [2020] IRLR 809 CA: trade union rulebooks, construction, disciplinary procedures (junior counsel to O. Segal QC);
• Harris & Ors v Kaamil Education Ltd; Diligent Care Services Ltd; Premier Carewaiting Ltd – home carers, national minimum wage test litigation (£100,000 award);
• Carluccio’s Ltd (In Administration) [2020] EWHC 886 (Ch) [2020] IRLR 510: first case on COVID-19 Job Retention Scheme;
• Ryanair DAC v BALPA [2020] IRLR 698: industrial action, injunctions;
• Royal Mail Group Ltd v CWU [2020] EWHC 842 (QB): resisting summary judgment application;
• Secretary of State for Justice v Prison Officers Association [2020] IRLR 196 Div Ct: contempt; Art. 11 ECHR;
• Royal Mail Group Ltd v CWU [2020] IRLR 213 CA; [2020] ICR 940; The Times, March 12, 2020:industrial action;
• Kostal UK Ltd v Dunkley & Ors [2020] ICR 217 CA; [2019] IRLR 817:seminal decision on inducements under s. 145B. Permission to appeal to Supreme Court;
• Mears Homecare Ltd v Bradburn [2020] ICR 31; [2019] IRLR 882 EAT:NMW production notices, TUPE;
• Birmingham City Council v Unite the Union and UNISON [2019] IRLR 423;
• Reading Borough Council v James and others [2018] ICR 1839; [2018] IRLR 790:equal pay; choice of comparator, operation of equality clause;
• Ministry of Justice v Prison Officers’ Association [2018] EWHC 3672 (QB): – collective agreements;
• Coyne & Brooks v Unite the Union D/12-20/18-19;
• London Care Ltd v Henry & Ors UKEAT/0219/17/DA – TUPE, largest group NMW litigation in social care sector;
• Blakely v On-Site Recruitment Solutions Ltd UKEAT/ 0134/17/DA– test litigation on worker status; service companies; construction sector;
• Fleming v East of England Ambulance Service NHS Trust UKEAT/0054/17/BA– admissibility of covert recordings, legal professional privilege;
• Thomas Cook Airlines Ltd v BALPA [2017] EWHC 2253 (QB); [2017] IRLR 1137– successfully represented the pilot union in the first decision under s. 229(2D) TULR(C)A 1992 concerning the amount of information which needs to be included within ballot paper (junior counsel to O. Segal QC);
• Ministry of Justice v Prison Officers’ Association [2018] ICR 181–  inducement of prison officers to withhold their services, s. 127 CJPOA 1994; High Court accepted that the collective withdrawal from non-contractual  duties did not constitute actionable inducement at common law (junior counsel to J. Hendy QC);
• Govia Thameslink Railway Ltd  v ASLEF (No. 3) [2017] 2 CMLR 24; [2017] ICR 497; [2017] IRLR 246 CA:art 49, 56 TFEU – seminal decision examining the reach of the TFEU fundamental freedoms to industrial action, and the application of Viking, Laval, Holship to industrial action on Southern (junior counsel to O. Segal QC);
• BALPA v Jet2.com Ltd [2017] EWCA Civ 20; [2017] ICR 457; [2017] IRLR 233 CA–  instructed by BALPA in the Court of Appeal successfully overturning the High Court ruling [2015] IRLR 543 as to the scope of negotiating rights for the purposes of para 3(3) Sch A1 of the 1992 Act in respect of pay, hours and holidays (junior to B. Carr QC);
• Govia Thameslink Railway Ltd v ASLEF (No. 2) [2016] EWHC 1320 (QB);[2016] IRLR 686 (Supperstone J): ‘prior call’ (s. 233), ballot constituency (s. 228A), trade dispute (s. 244) (junior counsel to Lord Hendy QC);
• Govia Thameslink Railway Ltd  v ASLEF (No. 1) [2016] EWHC 985 (QB) (Langstaff J): –  inducement to breach contract (junior counsel to J. Hendy QC)
• Secretary of State for Education v NUT  [2016] EWHC 812 (QB); [2016] IRLR 512 (Kerr J):seminal decision on trade dispute with Minister of the Crown (s. 244(2)(b)), interim declarations (junior counsel to J. Hendy QC);
• McFarlane & Ambacher v EasyJet Airline Co Ltd [2016]IDS Brief 1058: test litigation concerning adjustments to rostering arrangements to permit breastfeeding mothers to express milk, indirect sex discrimination, H&S, s. 63 ERA 1996;
• Plumb v Duncan Print Group Ltd [2016] ICR 125: accrual of right to paid annual leave during long-term sickness absence – EAT held that the carry over period was subject to an 18 month temporal limit;
• Land Registry v Houghton [2015] IDS Brief 128: one of the first EAT decisions to examine the scope of s. 15 EqA 2010 (unfavourable treatment arising in consequence of disability; withholding of bonus payments; sickness absence);
• Mosekari v Lewisham LBC [2015] ELR 31 (Admin): successfully represented Lewisham resisting a judicial review challenge brought by a teacher seeking exemption from mandatory induction period following award of QTS;
• Virulite LLC v Virulite Distribution Ltd  [2015] 1 All E.R. (Comm) 204 (QBD): represented defendant in multi-million pound commercial action – wrongful repudiation of distribution agreement for cold sore treatment; promissory estoppel; repudiation; termination; variation clauses; waiver (junior to O. Segal QC);
• Thorne v House of Commons Commission [2014] EWHC 93 (QB); [2014] IRLR 260: public sector pay freeze; breach of contract – progression payments; incorporation;
• Vaughan v London Borough of Lewisham [2013] IRLR 720: concurrent ET and High Court proceedings; refusal to stay High Court proceedings; defamation – justification defence;
• Anderson & Ors v LFEPA [2013] EWCA Civ 321; [2013] IRLR 459 CA: collective agreement 3 year pay deal; construction; incorporation (junior to O. Segal QC);
• Dunn v Basildon & Thurrock University Hospitals NHS Foundation Trust [2013] EWHC 3636 (QB): successfully represented Trust to resist application for interim relief; alleged breach of disciplinary procedure;
• Working Links (Employment Ltd) v PCS UKEAT/0305/12/RN; [2013] IDS Brief 971: collective redundancy consultation; trade union recognition for collective bargaining; s. 188;
• Vaughan v LB Lewisham UKEAT/0534/12/SM:admissibility of covert recordings;
• HM Land Registry v Benson [2012] ICR 627; [2012] IRLR 373: early retirement; age discrimination; justification.

• USDAW secures injunction to restrain Tesco’s “fire and re-hire”
• The right to trade union representation: Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47 – by Stuart Brittenden & Richard Arthur (UK Labour Law Blog)
• Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47 – Inducements relating to collective bargaining
• Event: Stuart Brittenden speaking at ELA’s virtual conference “Industrial Relations: a look back and forwards”
• Eight members of Old Square Chambers act in judicial review concerning the Restriction of Public Sector Exit Payments Regulations 2020