Employment and Equalities
Karen Moss is an employment law specialist. Employment tribunal work has included both Claimant and Respondent work relating to unfair dismissal (substantive and procedural, constructive or actual), wrongful dismissal, discrimination (sex, sexual orientation, race, age, disability, religion and belief; direct and indirect), harassment, victimisation, stress at work claims, equal pay claims, TUPE, breach of contract, PIDA/whistleblowing claims, working time and unlawful deductions from wages. She has a particular interest in disability discrimination claims, including failure to make reasonable adjustments, and sex discrimination claims.
She is also regularly instructed to appear or to advise in matters of employment-related insolvency and judicial or other employment mediations. She has been instructed to draft a wide variety of employment pleadings and frequently advises parties pre- and post-action in industrial relations matters generally and tribunal and/or county court and/or High Court litigation, including post-termination restrictions and injunctive proceedings. She regularly appears in the Employment Appeal Tribunal and has appeared in the Court of Appeal on employment matters.
Karen Moss has undertaken work on Conditional Fee and Damages Based Agreements and on a pro bono basis in appropriate cases. Additionally she has represented parties in judicial and other mediations regarding employment and wider commercial disputes.
She gives lectures, seminars and produces training material on the development of employment law to solicitors, human resources and other professionals.
Karen has been appointed the barrister panel of ELAAS (the Employment Lawyers Appeals Advice Scheme). ELAAS is a service offering pro bono employment law advice to appellant and respondents where there is a preliminary hearing in the EAT with no previous legal representation on record.
Reported and interesting cases
Philcox v CGDM Ltd TA Andrew Wilson and Co
Involved a lengthy employment tribunal hearing concerning allegations of unfair dismissal and very serious sex discrimination, harassment and victimisation, which were not upheld. After successfully responding to an appeal in the EAT before HHJ Eady QC in February 2017 (and obtaining an EAT costs order after the appeals were dismissed), Karen Moss successfully applied for permission to be set aside in the Court of Appeal last week. Lord Justice Underhill determined that this was an exceptional case which merited setting aside the permission to appeal granted by Lord Justice Elias last year (UKEAT/0821/16/DA, UKEAT/0826/16/DA, UKEAT/0827/16/DA, A2/2016/2804)
Hampshire County Council v Wyatt UKEAT/0013/16/DA
Represented the successful Respondent before the President of the Employment Appeal Tribunal Mrs Justice Simler DBE who gave invaluable guidance in relation to the divisibility of injuries and proportionate reduction of ITF and personal injury awards and on the use of medical evidence in employment tribunals for personal injury claims.
Pnaiser v NHS England and Coventry City Council  IRLR 170 - (1) Did the tribunal apply the incorrect burden of proof under s.136 Equality Act 2010 and (2) Could a prospective employer be liable for discrimination arising in consequence of a disability, by relying on a reference which itself was discriminatory, even if the prospective employer did not know of the link between negative reference and the disability? The answers, given by Mrs Justice Simler to both of these questions are emphatically affirmative. The Appellant not only succeeded in the appeal but also had the decision of the Tribunal overturned and a decision upholding her claims for disability discrimination was substituted.
Scotthorne v Four Seasons Conservatories (UK) Limited UKEAT/0178/10/ZT – whether the Tribunal was correct not to order disclosure of documented advice from “Employment Consultants” or HR professionals who were not legally qualified on the grounds of either legal advice privilege or litigation privilege and the application of New Victoria Hospital v Ryan  IRLR 202 and Three Rivers DC v Bank of England (No.6)  1 AC 610.
Norman v Yellow Pages  B2/2007/2161A Court of Appeal – whether an appeal on an arguably “academic” point should proceed in relation to a case concerning payments of net figures under a COT3 agreement instead of gross.
Atkinson v Director of Public Prosecutions  1 WLR 96;  3 All ER 971.
Lloyd-Briden v Worthing College  3 CMLR 27, EAT – the applicability and effect of the ECJ decision in Mangold on the age discrimination provisions before the implementation date in the UK.
Miller v Bank Farm Produce Ltd UKEAT/0003/06/MAA – question of whether the Tribunal had mixed the law on constructive and actual unfair dismissal by finding a repudiatory breach by the employer but failing to find a causal link between the employer’s actions and employee’s resignation.
Bird v Collease Truck and Trailer Rentals Ltd UKEAT/0153/06 – question of whether the Tribunal had come to a conclusion which was unsupported by evidence and/or reached a conclusion that there was no evidence to support part of the Appellant’s claim when there was uncontested evidence in relation to an unlawful deductions case.
Roberts v Valleyrose Ltd T/A Fernbank Nursing Home UKEAT/03944/06/D  All ER (D) 163 (Aug) – question of whether the Tribunal was biased against the Appellant and whether the Appellant had had a fair opportunity to refute an allegation of bad faith in a PIDA claim.
London Borough of Camden v Price-Job UKEAT/0507/06/DM  All ER (D) 259 (Dec) – question of whether the Tribunal correctly considered all relevant circumstances of Respondent to a DDA claim, and whether they considered the effect of s.3A(6) appropriately. Additionally the application of the law in relation to whether an appropriate assessment of an employee is a necessary pre-condition to reasonable adjustments.
Dr Gorai v Patel PA/1863/06/ZT  All ER (D) 190 (Nov) – whether the Tribunal had found facts sufficient to constitute a constructive unfair dismissal and whether the application of the “last straw” doctrine was correct.
Snows Motor Group Ltd v Palmerino UKEAT/1512/08DM – whether the Tribunal had “slipped into the substitution mindset” following the Court of Appeal decision in London Ambulance v Small and the applicability of the statutory disciplinary procedures where detailed evidence had not been provided until the Step 2 hearing.
'Keeping an eye on the Information' (23rd July 2004) 154 NLJ 1125
Testimonials and praise
Karen’s extensive advocacy experience in employment tribunals, county courts, High Court and the EAT in relation to employment matters has won her the following praise:
“Karen provided us with an excellent service in (a number of) cases. One case in particular involved two litigants in person and considerable documentation. The clients were extremely pleased with her handling of what was a sensitive case for them and of the successful result. Her manner with clients was good and put them at their ease. She has also performed well on cases where there was a need for greater intellectual input and skilful advocacy. Her reporting back is excellent. She is backed up by clerking at 3PB which is first class.”
“Karen was outstanding over the two days and secured the very best possible outcome for us.”
“I would also just like to say a massive thank you to you and to congratulate you on the excellent result yesterday, which I put entirely down to you. I am so impressed and I must say you have been a pleasure to work with throughout. I will 100% try and book you for any upcoming hearings I have in the future and cannot recommend you highly enough.”
“your understanding of these matters and the manner in which you conveyed it to what appeared to be the most strict judge ever, was great. Furthermore, your cross examination of the cohort of (claimants) certainly taught them a lesson and was a pretty merry occasion for the three judges who could not contain themselves sometimes at the answers being received as well as the manner in which you had shown these (claimants) to be lying about various if not all statements they had made earlier. You had clearly shown (the first claimant) potentially what would happen to her when her case started and she was very fearful of your attendance at her hearing. Even more so, you obtained a costs hearing and costs against the claimants… Once again our heartfelt thanks and gratitude for your assistance.”
"Karen's strategy, foresight in the approach and cross-examination seemed to me to be truly exceptional. I never for one moment expected that the Respondent would seek to settle part way through the hearing, and I am convinced their surprising haste to settle part-way through the hearing was completely due to Karen."