Top Employment Lawyer

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Have you been discriminated in the workplace and are seeking advice from a top employment lawyer in London? Damian McCarthy is a top employment lawyer with over 20 years of experience, dealing with cases of all sizes and providing an extremely high standard of service. So if you need a top employment lawyer in London to fight your case against discrimination, contact Damian McCarthy.

The Equality Act 2010 provides protection for employees if they are suffering from discrimination in the workplace. This is usually due to an individual having a ‘protected characteristic’, whether it be their gender, race or sexual orientation. As an experienced, top employment lawyer, Damian McCarthy can represent you if you have suffered from discrimination, whistleblowing, unfair dismissal, bullying or harassment. If you have been discriminated and would like a top employment lawyer to get the justice you deserve, then visit our ‘Discrimination at Work’ page to find out more.

With over 20 years of experience in the employment law industry, Damian has dealt with many high-profile cases, working hard to achieve the outcome that was deserved. Damian is fully committed to each and every case and will always strive to achieve the best possible outcome.

Damian can adapt his approach to the case that he’s serving, whether it be an aggressive or charming approach. One of Damian’s most recognised cases was when he represented the television presenter Moira Stuart, against the BBC, for the case regarding her dismissal due to age discrimination. He achieved outstanding results in this case and went on to receive nationwide attention from the media.

If you are seeking a top employment lawyer, Damian McCarthy is the lawyer you can trust. For more information, call Damian on 020 8263 6080 or fill in the form on our Contact page. Just enter all necessary information into the mandatory fields and he’ll look to get back to you as soon as possible.

Your employer must inform you if they want to monitor emails and messages

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Workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should (exceptional reasons aside) tell the worker that their communications might be monitored. Here, although the employee knew it was forbidden to use work computers for personal purposes, he had not been told that the employer was monitoring his communications.

Accordingly the ECHR held that the Romanian court’s decision was wrong, and that Romanian law failed to strike a fair balance between the employer’s and the employee’s interests. Accordingly there was a breach of Article 8 and the employee was entitled to compensation.

So your employer must tell you if they are monitoring your emails and messages.

Breaching Your Employer’s Confidentiality Can Lead to Imprisonment

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Sharing confidential information with those outside their workplace can have serious consequences for employees, but many will be surprised to learn from one High Court case that such behaviour can even lead to imprisonment (OCS Group UK Limited v Dadi and Others).

The case concerned a cleaning company that had lost a major contract to a rival. As a result, many of those who had serviced the contract on behalf of the company had their employment transferred to the competitor under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The company was also competing with its rival in respect of other contracts and was concerned that its former employees might divulge confidential information to their new employer. It launched proceedings against one of its former workers, Jagdeep Dadi, on the basis that disclosures of price-sensitive information that he had made to his new employer breached the confidentiality provisions of his contract and the fiduciary duties that he owed to the company.

Mr Dadi did not defend the proceedings and a default judgment was entered against him. An injunction was issued that forbade him from disclosing further confidential information. He was also ordered not to disclose the existence of the order to anyone else and to preserve any relevant hard copy or electronic documents in his possession.

Almost immediately after being served with the injunction, however, Mr Dadi informed a member of the competitor’s management of the order. He also told others about it and deleted numerous messages from his email account. In those circumstances, he admitted four breaches of the order.

Mr Dadi explained that, on receipt of the injunction, he had panicked and phoned his manager, whom he trusted. He did not read the order carefully, nor did he seek legal advice immediately. He was not a criminal but had made a terrible error of judgment. Imprisonment would have a calamitous impact on his family, health and reputation and would gravely damage his prospects of finding work in the future.

In sentencing him to six weeks in prison, however, the Court noted that appropriate punishment was required to mark his deliberate breaches of the order. He had no one to blame but himself and, as the deleted emails were probably irrecoverable, the breaches had had a significant effect on the company. He had expressed remorse and thrown himself on the mercy of the Court, but the sentence was necessary to deter others from similar conduct.

Employment Tribunals allow litigation friends

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It has for a very long time been possible for vulnerable people to be represented in court by litigation friends so that they can have proper access to justice. Now, in a decision of general public importance, that right has for the first time been extended to proceedings before an Employment Tribunal (ET).

The case concerned a woman who had succeeded in automatic unfair dismissal and whistleblowing claims against her former employer. There was medical evidence that she suffered from post traumatic stress disorder and a moderate depressive illness, triggered by traumatic experiences that she had endured during her employment.

A further hearing was due to take place before an ET at which the amount of her compensation would be assessed. Her lawyers argued that, due to her psychiatric problems, she lacked the capacity to conduct the proceedings. The ET, however, refused to appoint a litigation friend on the basis that it had no power to do so.

In ruling upon her challenge to that decision, the Employment Appeal Tribunal (EAT) noted that neither the Employment Tribunals Act 1996 nor the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 conferred any express power to appoint litigation friends.

However, in allowing the woman’s appeal, the EAT found that the absence of such a power was incompatible with the common law duty of fairness and the woman’s human right to a fair hearing. Without a litigation friend, the woman and other vulnerable litigants in the same position would be prevented from participating in employment proceedings in any real sense.

The EAT recognised that ETs are creatures of statute and can exercise only those powers that are conferred on them by Parliament. However, when interpreted in accordance with fairness and human rights legislation, it found that the Regulations were broad enough to enable ETs to use their case management powers to appoint litigation friends. The case was remitted to the same ET for that to be done.

Because the case had raised novel issues of general public importance, the EAT had taken into account representations from the Law Society and the Secretary of State for Business, Energy and Industrial Strategy in reaching its decision.

Employment Tribunals ensure everyone has a fair hearing.

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Employment Tribunals (ETs) are at the forefront of the battle to eradicate discrimination in all its forms from the workplace. It is obviously vital that they practice what they preach and that is all the more reason why they are anxious to ensure that even the most vulnerable complainants receive a fair hearing.

One case in point concerned an academic who suffered from severe mental health difficulties and claimed that he had endured disability discrimination, victimisation and unfair dismissal at the hands of a university. His complaints were dismissed by an ET, but he challenged that decision before the Employment Appeal Tribunal (EAT) on the basis that he had not been afforded a fair hearing.

He submitted that the ET should have taken it upon itself to postpone or adjourn the proceedings, in which he represented himself, when the extent of his mental health difficulties became apparent. He had broken down under cross-examination and, although he had been willing to continue, the ET had acceded to the university’s request to cut short the hearing and move straight to closing submissions.

In rejecting his appeal, however, the EAT noted that he had been aware of his right to seek a postponement or adjournment of the hearing, but had not done so. The ET had made appropriate adjustments to enable him to fully participate in the case until he broke down. The decision to bring his cross-examination to a premature end had if anything disadvantaged the university. He had still been able to present his case and, viewed overall, the hearing had been a fair one.

Human Rights Act vs Employment Law the debate goes on.

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The impact of the UK’s human rights obligations on employment law is still a subject of much debate almost 20 years after the advent of the Human Rights Act 1998. In one important case, the Court of Appeal upheld a trade union’s plea that the right to freedom of association may be violated by the exclusion of parks police officers from pre-redundancy consultation rights that are afforded to other workers.

The case arose from a local authority’s decision to disband its parks police service. Two officers who lost their jobs as a result lodged complaints of unfair dismissal with an Employment Tribunal (ET). Their trade union also sought a protective award in respect of the council’s alleged failure to carry out collective consultation prior to the making of more than 20 redundancies, as required by Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Both claims were permitted to proceed to a full hearing by the ET, but that decision was subsequently reversed by the Employment Appeal Tribunal (EAT). In respect of the officers’ claims, the EAT noted that those persons in police service are precluded from bringing unfair dismissal claims by Section 200 of the Employment Rights Act 1996. The union’s claim was excluded by Section 280 of TULRCA.

The Court had no enthusiasm in rejecting the officers’ appeals on the basis that their dismissals did not engage Article 8 of the European Convention on Human Rights – which enshrines the right to privacy – whether read by itself or in conjunction with Article 14, which bans discrimination. In urging the Government to review the law on the point, the Court noted that the exclusion of parks police from unfair dismissal protection was anomalous and an apparent injustice.

In upholding the union’s appeal, however, the Court found that the right to collective consultation conferred by TULRCA fell fairly and squarely within the ambit of Article 11 of the Convention, which guarantees freedom of association and peaceful assembly. The union’s claim for a protective award was thus not excluded and its case was sent back to the ET for full consideration on its merits.

Employment Tribunal Fees Struck Down by Supreme Court

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In a resounding decision that emphasised the right of everyone to have affordable access to the justice system, the much criticised fees levied on complainants by the Employment Tribunals and the Employment Appeal Tribunal have been struck down as unlawful by the Supreme Court.

The fees  which range from £390 for straightforward cases to £1,200 for more complex ones have been a source of great controversy since their introduction in 2013. Trade union Unison mounted an unsuccessful judicial review challenge to them but has now triumphed in its appeal.

The Court found that the fees are unlawful, both under domestic and European law, in that they prevent access to justice. That was a constitutional right inherent in the rule of law and tribunals could not be viewed merely as providing a service of value to those who bring claims before them.

The fees charged in less complex cases bore no relationship to the amounts sought and therefore acted as a deterrent to claims for modest sums or non-monetary relief. Many such claims could be regarded as futile or irrational in that the fees exceeded the sums claimed. The introduction of the fees had led to a dramatic and sustained fall in the number of claims, particularly low-value claims, and they were the most frequently cited reason for not submitting a claim.

The Court noted that, in many cases, those on low or middle incomes could only pay the fees by making sacrifices and foregoing a reasonable standard of living. In those circumstances, they could not be regarded as affordable. The fees also contravened EU law guarantees of an effective remedy before a tribunal and imposed disproportionate limitations on the enforcement of EU employment rights.

The fees were also indirectly discriminatory, within the meaning of the Equality Act 2010, because the higher fees for more complex claims put women at a particular disadvantage. The evidence showed that a higher proportion of women than men brought such claims. The higher fees did not correspond to a higher workload being placed on tribunals and acted as an equal deterrent to unmeritorious and meritorious claims.

The Ministry of Justice has said that the Government will take immediate steps to stop charging ET fees and refund payments made since 2013.

Potential Public Interest in Whistleblowing Case after Breach of Contract

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Public interest disclosure were introduced from 25th June 2013, under S.43B (1) of the Employment Rights Act 1996, public interest disclosures had to be “in the public interest” to qualify for protection. In Parkins v Sodexho Ltd the Employment Appeal Tribunal’s (EAT) ruling was reversed due to the ‘in the public interest’ test being added. For Parkins v Sodexho Ltd the definition of a qualifying disclosure concerning a failure to comply with a legal obligation was broad enough to cover a breach of an employee’s own contract of employment.

In the landmark whistleblowing case Chesterton Global v Nurmohamed, Nurmohamed (N) believed Chesterton were purposely miss allocating  between £2 and £3 million of actual costs and liabilities. N had been dismissed which he believed was due to him disclosing in the public interests about the alleged use of completely false profit and loss figures to estimate commissions, transitional payments and profit bonus calculations paid to over 100 managers.

It’s for the ET to consider all of the circumstances pf the particular case, the following four factors should be taken into account:

  • The figures of people in the group whose interests the disclosure served.
  • The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.
  • The nature of the wrongdoing disclosed.
  • The persona of the alleged wrongdoer and its ‘community’, i.e. staff, suppliers and clients

In this case, N did have other outside of himself (the other managers) in mind, which resulted in a section of the public would be affected and the public interest test was satisfied. An EAT upheld N’s claim, after the ET also did. The EAT ruled that the key issue was whether the worker believed on an objectively reasonable basis that the disclosure was in the public interest. The court of appeal found the interest in question to be personal in character, this conflicted the facts of the case that made it reasonable to regard the disclosure as being in the public’s interest. Inevitably it was ruled there was dual interest, between personal and public.For example, a disclosure which provided evidence that police officers workforce were being largely reduced might well be in the public interests, as well as in the personal interests of the police themselves, because of the impact on public safety.
However in the same breathe many other cases it could be reasonably ruled for that such a disclosure ultimately was in the public’s’ interest.

 

For this case, it had over 100 people affected by the alleged misconduct, plus there were other features which rendered the disclosure in the public interest. Most vitality the disclosure consisted of allegations of misstatements in the accounts to the sum of £2m to £3m. It impacted numerous people inevitably, there was no mistake of law in the ET’s decision.
This case can be seen as progression and new interpretation on the new statutory test means in whistleblowing legislation. However the ruling still shows that the “in the public’s interest” is broad concept, each cases circumstances must be considered using the four-factor approach.

Groundbreaking whistleblowing case to consider “public interests” test

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court of appeals

Chesterton Global Ltd (t/a Chesterton Humberts) and another v Nurmohamed, case was heard by the Court of Appeal. The case holds great importance for future whistleblowing cases.

The appeal was heard in the Royal Courts of Justice on 8 June. In case of terms in considering when a disclosure is “in the public interest” this case is vital, for claimants seeking to establish that a disclosure is protected this is a key challenge.

 

The cases brings wide attention and importance, as will adhere to the new whistleblowing laws that were introduced in June 2013. The changes were intended to prevent potential claimants misusing whistleblowing protection according to the disclosure of matters to their own contract of employment. These changes in the laws were that to be protected, a worker must have reasonably believed that he or she was making the disclosure “in the public interest”

 

These changes to the law have opened wide debates to the scope of the phrase “in the public interests”. The Chesterton Global ltd case is the first appeal cases to draw on the debate in court.

Looking at the hearing in terms of impact to UK employment law, it is hard to argue against this being the biggest case that the Court of Appeal hears in 2017.

 

Whistleblowing charity Public Concern at Work intervened in the case and was able to make representations before the Court of Appeal. In the case Mr Nurmohamed, a manager with a large estate agent, raised concerns about discrepancies with how his commission under a new commissioning structure was calculated.

He contended that the discrepancies were deliberate and that the accounts were being manipulated by management to the benefit of shareholders, thereby reducing the amount that he and more than 100 other managers would receive by way of commission. The employer consequently dismissed Mr Nurmohamed.

 

He brought an unfair dismissal claim in the employment tribunal, including an allegation that the dismissal was automatically unfair because he had made a protected disclosure, and that he had been subjected to detriments for making a protected disclosure. Both the employment tribunal and EAT accepted that he reasonably believed that the disclosure was “in the public interest”. They were satisfied that, even though Mr Nurmohamed was primarily thinking about his own commission, secondary the group of 100 or so managers, were also affected by the issue, who in this case were the “section of the public”.

 

In the appeal on 8 June, the Court of Appeal heard from the employer’s representatives that the tribunal was wrong to concentrate on the number of workers affected. Instead the employment tribunal should have looked more closely at the nature of the disclosure, and not be distracted by the number of people affected. According to the employer’s lawyers, Mr Nurmohamed’s concerns were more alike to a collective grievance, rather than something that was of wider “public interest”. However, Mr Nurmohamed’s representatives maintained that a disclosure should count as being “in the public interest” if it raises matters that are more than purely personal, and the issues are of “some importance” to at least one other person.

 

They argued that a narrow “public interest” test could have the “chilling effect” of discouraging workers from making disclosures in the first place. Mr Nurmohamed’s case was heavily built around the blatant assumption that he reasonably believed that he was making the disclosure “in the public interest”, given the roll on effect on other parties e.g. numerous managers, financial impact of millions at hand, and his assertion that there had been measured wrongdoing.

 

Public Concern at Work, in its submissions at the end of the hearing, highlighted that whistleblowing laws encourage workers to speak out over wrongdoing in the workplace, and whistleblowers need to know that they will be protected when they raise distresses. According to the charity, employers’ whistleblowing policies are conveyed to encourage workers to speak out whenever they see wrongdoing, and policies do not typically tell workers to raise concerns only if they are “in the public interest”. It is significant that Public Concern at Work has intervened. Whistleblowing protection could be harshly restricted if the test for public concern is too strict.

 

Judgement was reserved at the end of the Court of Appeal hearing. It is likely to be a few months before the final judgment is delivered. The Court of Appeal judgment will be binding on employment tribunals and the EAT.

New FCA Reports Shows Another Drop In UK Whistleblowing Cases

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The Financial Conduct Authority (FCA) has released disappointing statistics that show how the volume of employees making whisteblowing claims has dropped sharply throughout the finance industry for a second year.

This result is unfortunately not a positive indication that a lower need for UK workers to address wrongdoing in the workplace now exists, but is rather a reflection of how employees feel a lack of support is available to them should they choose to speak out. The amount of high-profile cases reported by the media in recent months certainly indicates no decline in the need for representation, although only few will gain such a level of exposure.

The FCA’s report details how there were 866 reports of whistleblowing in 2016, a downturn of over 20% from the 1105 reports issued during 2015, which in turn was well below the 1367 registered for 2014.

The FCA report also details how just six of the disclosures the organisation received were considered strong enough to actually result in legal action against an employer, despite 108 other claims being initially deemed solid enough for further investigation. This marks another disappointing drop over 2015 when 199 claims were considered to be of value.

Despite a clear decline, the 2016 result remains a vast improvement compared to the whisteblowing figures of a decade ago. In 2007-08 the number of workers speaking out was as low as 140. Increased media coverage for high-profile whistleblowing cases and a greater level of support for UK finance employees has since encouraged workers to make their voices heard. However, the introduction of tribunal fees in July 2013 led to a universal decrease in employment law cases, of which whistleblowing has been no exception.

Another significant factor harming the volume of whistleblowing cases is recent legislation instructing finance companies with assets of at least £250m to employ a senior manager in the role of ‘whistleblowing champion’. Since its introduction in 2015, this position requires a designated employee to give confidential advice to employees who approach them regarding workplace grievances.

All comments made are disclosed in confidence and the manager concerned must as a matter of protocol refer each report to the whistleblowing services of the FCA and Prudential Regulation Authority. An employee is required to speak with this manager before seeking outside guidance, although some exemptions may be possible.

Such an internal assessment is intended to assist workers as part of a system designed to save both employer and employee the costs amassed through outside referrals while eliminating misunderstanding between both parties where possible.

Although it must be considered that this approach may have an opposing effect, as claims made to an outside source with a potentially more balanced perspective may actually be more beneficial to the worker. Nevertheless, the introduction of whistleblowing champions shows how the UK government is prioritising the need to support employee concerns regarding internal business conduct.

It is often suggested that Britain should adopt an approach similar to that of the US, in which whistleblowers are offered financial incentives for making claims. The belief behind this scheme is that workers will be less likely to worry about the consequences whistleblowing might have on their career if they are financially compensated.

However, critics of the scheme believe it will cause a rise in false claims, which defeats the tribunal fee system’s intention to save taxpayer money by reducing false claims. However, others feel that the scheme will make claimants more likely to gain enough confidence to make a claim. This approach has thus far been generally successful in America, with many new claims getting approved for tribunal hearings.