Employment and discrimination
Joseph is an extremely experienced practitioner and his busy practice has ensured that he has in-depth experience of a wide variety of areas and types of claim. His success and evident abilities have led clients to trust Joseph with very complex cases. Joseph’s practice benefits from representing and advising both sides of employment disputes and he has been instructed in cases at the Court of Appeal, EAT and at a wide range of final and preliminary hearings in Tribunal and Court.
He has appointed as a fee paid (part-time) Employment Tribunal Judge. He sits in the London South region and therefore cannot act in cases assigned to that region (Croydon and Ashford).
Joseph can be instructed directly through the Direct Access Scheme and is happy to discuss potential cases with clients without obligation. He regularly delivers training covering areas from nuanced and niche points of law to basics of the Tribunal procedure and mock tribunals. He has been published in the ELA Briefing and provides updates through Chambers’ monthly newsletter and on Twitter @JEnglandCounsel.
The below lists provide some examples of cases in which Joseph has been instructed.
Whistleblowing
Following involvement in various high profile and extremely significant ‘whistleblowing’ claims, Joseph has particular expertise and passion in this area. He is the author of NHS Whistleblowing and the Law and and provides pro bono support to Protect.
Mattu v Coventry and Warwickshire NHS Trust
Acting for the successful Claimant who was awarded £1.22mil net in 2016, this case was successful in demonstrating that Dr Mattu had made protected disclosures, suffered detriments as a result, been unfairly dismissed and suffered various acts of disability discrimination, including by his dismissal as a detriment arising from his disability. The case was extremely complex and document-heavy, involving approximately 25,000 documents. Joseph was the only lawyer to have been retained through every stage from 2013-2016 and appeared as Junior to Jack Mitchell then Jane McNeill QC. Please click here for more details.
McTigue v University Hospital Bristol NHS Foundation Trust ([2016] IRLR 742)
A successful appeal, leading to the expansion of protection under the extended definition of worker and the range of people able to rely on whistleblowing protection. The Claimant was employed as a nurse in a Sexual Assault Referral Centre and her employer was a third party that placed her in the NHS Trust, who denied that she was protected by the legislation. Please click here for more details.
Gilbert v X College
The Claimant was a learning support assistant in the home economics department and brought claims that she had made PIDs relating to health and safety (unsafe cooking facilities) and breaches of legal obligations (theft of cooking materials). Representing the Respondent, Joseph demonstrated that although PIDs had been made and detriments suffered, these were not because of any PID but because of her wider behaviour and the manner in which she raised her complaints.
T v James Paget University Hospital NHS FT
This case involved a surgeon dismissed for alleged capability issues. The Claimant brought various claims, including that he had made various PIDs relating to health and safety, particularly around the competency of his colleagues. Joseph was instructed on behalf of the Claimant in the drafting and advisory stages and appeared at a PH. The case had very dense and complicated facts and was consequently listed for an 8 week trial. Joseph produced an 82 page advice dealing with the various claims and the case subsequently settled.
B v D NHS Trust
Instructed by the Trust, this case considered whether a Claimant was dismissed because of whistleblowing whilst undertaking a student placement at the Hospital. Jurisdiction and the parameters of ‘employment’were key issues.
W v Ashcourt Rowan Asset Management
Joseph represented the Claimant, who was employed as the Head of Intermediary Sales. The Claimant claimed he had been dismissed as a result of PIDs concerning the way his previous employer had obtained their credit rating, including through allegedly false documentation. The case provided an interesting analysis of to whom a PID could be made and in this case the potential for PIDs to be made to the new employer about an old employer and to the FCA.
S v Z Haulage Contractors
Representing a national firm of haulage contractors in a claim in which an employee claims to have been dismissed due to raising allegations of a failure to comply with regulations of the Road Haulage Association.
X v British Transport Police
Representing the Claimant in this lengthy trial, Joseph demonstrated that PIDs had been made despite being contained within extremely dense documentation. The whistleblowing concerned alleged fraudulent overtime claims and health and safety concerns.
Discrimination
Mattu v Coventry and Warwickshire NHS Trust
Acting for the Claimant who was awarded £1.22mil net, this case successfully demonstrated that Dr Mattu had made protected disclosures, suffered detriments as a result, been unfairly dismissed and suffered disability discrimination. The case was extremely complex and document-heavy, involving approximately 25,000 documents. Joseph was the only lawyer to have been retained through every stage over the 4 year tribunal history, appearing as Junior to Jack Mitchell then Jane McNeill QC . Please click here for more details.
Lazarevic v [technology company] 2016
Acting for a multi-million pound I.T. company, Joseph was able to secure a rare 100% Polkey reduction for financial losses arising from a discriminatory dismissal.
V v Hertfordshire County Council and Another ([2015] All ER (D) 260)
Successfully represented a school caretaker dismissed for allegations loosely based on ‘crossing professional boundaries’ in relation to his interactions with children. The dismissal was exposed by Joseph as involving an investigation that was “seriously flawed”, by the appeal stage “the process was so badly flawed, it was irredeemable” and an act of sex discrimination. At the remedy hearing, the tribunal nevertheless awarded a nearly 100% Polkey reduction to the Claimant’s compensation. However, Joseph successfully appealed and compensation was increased from £1135 to over £60,000, in addition to an award of over £20,000 for injury to feelings. Please click here for more details.
Dawes v X County Council
Representing a County Council in a complex claim of disability discrimination arising out of difficult issues involving the long term sickness absence of a carer dismissed for his absence, successfully defending claims of direct, indirect, ‘reasonable adjustments’ and ‘related’ discrimination.
Chikale v Okedina [2018] All ER (D) 86 (Jan) (UKEAT/0152/17)
Joseph appeared against leading and junior counsel in an appeal considering the scope of a defence of illegality based on the expiry of a migrant domestic worker’s working visa.
L v G
Representing a software company against various discrimination claims, including Equal Pay, sex and race discrimination during a trial lasting 11 days.
K v T NHS Foundation Trust and another
Representing a Claimant paramedic in an ongoing claim involving harassment through text messages and appearances outside the Claimant’s home as well as victimisation for complaints then brought by the Claimant. The employer is relying upon the statutory defence and therefore the claim will consider the extent of liability if discrimination is proved.
E v B School
Representing the school against various claims of disability discrimination brought by a teacher, including relating to dismissal for disability related absence arising out of alleged depression.
Restrictive Covenants and Employee Competition
Joseph has appeared and advised in a number of cases in this area, often leading to settlement. Work in this area often overlaps and is complemented with his expertise in commercial cases outside of traditional employment relationships, such as director and shareholder disputes. Cases frequently involve the finance and manufacturing sectors and involve confidential information and trade secrets. Examples of cases include defending an application for damages brought by an employer against an ex-employee for the use of confidential data used to poach clients and the drafting of an application for an injunction to prevent a football agent from poaching players.
Unfair Dismissal
Pennine Care NHS Foundation Trust v Mundangepfupfu ([2015] All ER (D) 265)
At the EAT, various grounds of appeal successfully resisted concerning unfair dismissal and the balance between substitution of a tribunal’s decision and the correct exercise of the ‘range of reasonable responses test’. Other grounds of appeal resisted included bias and perversity. Remitted for remedy.
V v Hertfordshire County Council and Another ([2015] All ER (D) 260)
Successfully represented a school caretaker dismissed for allegations loosely based on ‘crossing professional boundaries’ in relation to his interactions with children. The dismissal was exposed by Joseph as involving an investigation that was “seriously flawed”, by the appeal stage “the process was so badly flawed, it was irredeemable” and an act of sex discrimination. At the remedy hearing, the tribunal nevertheless awarded a nearly 100% Polkey reduction to the Claimant’s compensation. However, Joseph successfully appealed and compensation was increased from £1135 to over £60,000, in addition to an award of over £20,000 for injury to feelings. Please click here for more details.
Al Mustafa v Ibrahim (UKEATPA/0830/14)
At the EAT, an appeal against a decision of a Registrar that an appeal was lodged out of time, itself an appeal against a tribunal decision that a claim form making a claim of unfair dismissal had been submitted out of time and there were no grounds to extend time under the ‘not reasonably practicable’ test.
Boynton v West London NHS Trust
Representing the music therapy teacher at Broadmoor psychiatric hospital, successfully demonstrating employee status despite no written contract and consequentially gaining a concession on claims of unfair and wrongful dismissal.
P v Topps Tiles UK Ltd
Successfully representing a Claimant in a conduct dismissal, demonstrating that although dismissal could have been fair, reliant on computer data of log-in times, on the facts it nevertheless was unfair.
L v Lann & Hummell UK Ltd
A claim of unfair dismissal arising out of misconduct allegations for making allegedly defamatory remarks on Facebook.
J v WBTA
Representing a Claimant whose company was purchased by the Respondent, only for the Respondent to swiftly dismiss him for alleged misconduct. The evidence of the Respondent’s Director was exposed by Joseph at trial to be “extremely unsatisfactory...totally unreliable”.
F v Mouchel
Representing an accountant against a global firm, bringing a claim of unfair dismissal based on a sham redundancy after a TUPE transfer led to the Claimant being employed on a much higher salary than her comparable new colleagues.
Transfer of Undertakings
Joseph’s complementary practice in Business and Commercial Law enhances his Employment practice and he is often instructed in cases involving an overlap between the two, notably in matters involving TUPE transfers.
Samra and others v Optimax and others
Representing a test Claimant following the purchase by Optimax of Ultralase, a 5 day PH considered whether there was a transfer of undertaking between the two companies, against junior and leading Counsel.
L and others v Avon and Wiltshire Mental Health Partnership and NHS Trust and others
Representing one of four Respondents in a claim in which numerous Claimants had claimed to be employees arising out service provision changes. Joseph’s client was held not to be liable.
Tucker and others v Premier Security Services and others
Representing a Claimant employed to monitor CCTV with one company, the service for which was then brought in house to the County Council, then transferred to another company. The case looked at whether there had been a service provision change at any point between 4 different respondents.
R v Ad Valorem Accounting and another
Representing a Claimant bookkeeper, whose employer was purchased by another, then allegedly kept separate by a complex series of transactions and name swaps between companies.
F v Mouchel
Representing an accountant against a global firm, bringing a claim of unfair dismissal based on a sham redundancy after a TUPE transfer led to the Claimant being employed on a much higher salary than her comparable new colleagues.
Conduct and Internal Resolution
Joseph has been appointed to determine internal employment matters, including misconduct cases and grievances. His employment expertise ensures that he approaches such matters fully cognisant of correct and fair procedure and his appointment ensures independence within the decision making process. His experience in these matters builds upon his selection to sit on Police Misconduct Disciplinary Panels as a tribunal member, principally considering cases of misconduct considering actions against officers under the Police Conduct Regulations 2008 and Police (Conduct) Regulations 2012 .
His vast experience in particular of cases for and against the NHS has ensured that Joseph is fully aware of the unique and sometimes complex features of NHS regulations and disciplinary procedures. Other cases have involved a wide number of regulatory bodies, including the FCA, GDC and NMC.
Working time, holiday, sickness
Numerous of the claims detailed elsewhere have involved additional contractual claims for remuneration across the full spectrum of claims and the following provide further specific examples:
Weeks and another v G National Care Homes
Representing a chain of national care homes in what was being treated as a test case, Joseph successfully ensured the dismissal of two claims for the payment of National Minimum Wage during ‘sleep-in shifts’. Please click here for more details.
K National Care Provider
Following a HMRC review, this chain of national care providers sought Joseph’s advice in conference on whether the National Minimum Wage was payable to staff who had lengthy breaks between visiting clients and during sleep in shifts at care homes.
Palmer v Sopwell House Hotels
Representing a Claimant beauty spa therapist for various claims relating to underpayment of her wages. The Tribunal stated it had “considerable sympathy” for the Claimant’s confusion over her pay slips and the reality of her payments as against her contract were considered over a 3 day trial. The case looked at issues including whether there was any bonus, whether commission included VAT and whether the Claimant should have been paid hourly or monthly.
Remuneration, Bonuses and Notice Pay
Numerous of the claims detailed elsewhere have involved additional contractual claims for remuneration across the full spectrum of claims.
Palmer v Sopwell House Hotels
Representing a Claimant beauty spa therapist for various claims relating to underpayment of her wages. The Tribunal stated it had “considerable sympathy” for the Claimant’s confusion over her pay slips and the reality of her payments as against her contract were considered over a 3 day trial. The case looked at issues including whether there was any bonus, whether commission included VAT and whether the Claimant should have been paid hourly or monthly.
Smith v Wholefoods Ltd
Representing the Respondent in a claim that considered the validity of a clause relating to overpayment of wages against a promise to pay a higher than normal bonus shortly before the Claimant’s resignation, including overlap with excess salary provided in a final salary payment.
Jurisdiction
E v Nygard International Partnership
Conducting a hearing via video link with Canada, including cross examination, to successfully demonstrate that the employment tribunal had jurisdiction to hear a breach of contract case against a Canadian company brought by an employee based in the UK.
Yasim v X School and B v D NHS Trust
Representing a NHS Trust and separately a school, in both cases Joseph successfully had the claims of discrimination struck out on the basis that the Claimants were engaged through student placement pursuant to university courses and therefore the tribunal did not have jurisdiction to hear the claims.
