Mark is instructed in all aspects of Employment, Discrimination and Whistleblowing Law, for claims brought in the Employment Tribunal. Whilst he has mainly been instructed by Respondents, he has acted on behalf of both Respondents and Claimants.
Trials on Liability
Mark has successfully represented clients in trials alleging Discrimination (including claims brought under s.13 (direct discrimination), s.19 (indirect discrimination)), Disability Discrimination (including claims brought under s.15 (discrimination arising from disability) and s.20-21 (claims alleging a failure to make reasonable adjustments)), Victimisation, Harassment, Whistleblowing (including claims brought under s.47B (detriment) and s.103A (dismissal), Pregnancy and Maternity Discrimination (including claims brought under s.18 and under the Maternity and Parental Leave Regulations), Unfair Dismissal (including ‘ordinary’ claims under s.98 and automatic unfair dismissal claims under s.99, s.100, s.103A and s.104), Equal Pay, Holiday Pay, breaches of the Working Time Regulations and Breach of Contract. These instructions included:
- Successfully defending claims of Sex and Disability Discrimination, Whistleblowing, Harassment and Unfair Dismissal in a 14-Day Trial. The Tribunal, dismissed all the claims, found that the Claimant had been dishonest in a number of respects and made a costs order against them.
- Successfully defending claims of Disability Discrimination, Whistleblowing, Victimisation and Harassment in a 10-Day Trial.
- Successfully representing clients in cases with multiple Respondents.
- Successfully representing clients in cases involving claims by applicants for work brought under s.39 and by contract workers brought under s.41.
- Successfully representing clients in trials engaging each of the statutory proivisions cited above, involving multi-day and multi-week trials, and several witnesses, including in on-line hearings.
Trials on Remedy
Mark is regularly instructed to draft Schedules and Counter-Schedules of Loss and to appear in Remedy Trials in the Employment Tribunal. Issues which Mark has dealt with in these hearings have included:
- Issues of causation in assessing losses arising from an unlawful act, and just as importantly, losses which haven’t and so should fall outside any Award.
- Issues around the mitigation of losses, and in particular a successful Claimant’s obligation to take reasonable steps to mitigate their losses. In such cases, cross-examination and identifying the opportunities that were available to a successful claimant will be crucial.
- Issues around Bonuses and dealing with the counterfactual scenario of what a successful claimant would have received had they remained in employment.
- Assessing awards for Injury to Feelings.
- Assessing the impact on an Award of self-employment post termination.
- Calculating adjustments to Awards including for interest and grossing up.
- Assessing the application of Polkey and Contributory Fault principles to Awards.
As a former Chartered Accountant Mark is particularly well placed to deal with the financial aspects of litigation and presenting his client’s case on these issues to the Tribunal.
Mark is regularly instructed to deal with all matters that fall to be determined at Preliminary Hearings in the Employment Tribunal. Mark’s instructions have included:
- Determining the issue of Disability Status.
- Determining the issue of Employee or Worker Status.
- Determining issues relating to the Tribunal’s jurisdiction including the effect of delay in bringing claims.
- Making and defending applications for Restricted Reporting Orders under Rule 50.
- Successfully defending applications for Interim Relief brought under s.128.
- Making and defending applications to Strike Out or to seek Deposit Orders.
- Making and defending applications for Specific Disclosure.
- Making and defending applications for Amendments and Requests for Further Information.
- Settling Lists of Issues, preparing Hearing Agendas and drafting Case Management Orders, including orders for the provision of expert evidence.
Further Tribunal Litigation Work
In addition to appearing in hearings, Mark is regularly instructed to deal with all other aspects of Tribunal litigation. These include:
- Drafting Pleadings: Mark has extensive experience of drafting Grounds of Resistance and Grounds of Claim in cases involving all types of claim which can be brought in the Employment Tribunal. Mark has particular experience in drafting Grounds of Resistance to Discrimination claims (including the range of statutory forms of Discrimination, Victimisation and Harassment), Whistleblowing (under both s.47B and s.103A), and unfair dismissal claims, being those which most regularly appear in the Tribunal.
- Drafting Applications: In addition to drafting pleadings Mark regularly drafts Applications, including for particular orders and for Costs.
- Opinions: Preparing opinions on all aspects of Tribunal litigation. This has included preparing opinions for clients addressing the merits of claims, the merits of a preliminary issue such as disability or employment status, whether certain documents were privileged, issues of remedy and the expected level of an Award, and whether to make, or accept, an offer of settlement.
- Mediation: Mark has direct experience of both Judicial and commercial mediation (i.e. outside the Tribunal mediation process). Mark is regularly instructed to attend mediations on behalf of his clients, advise on whether to pursue such a route and if so at what potential level.
- Advising Generally: As part of his instructions Mark would advise generally on the conduct of a case, strategy and tactics.
Mark has appeared in both the Employment Appeal Tribunal and the Court of Appeal. He regularly advises on the prospects of potential appeals and is happy to accept instructions for further appellate work in cases originating from the Employment Tribunal.
Before the Employment Appeal Tribunal Mark appeared for the appellant, successfully securing permission to appeal at a Preliminary Hearing, and representing the Appellant at the Full Hearing in Windle & Arada v Secretary of State for Justice  IRLR 914. The case concerned the meaning of employment within the meaning of s.83(2) and therefore status for the purposes of bringing discrimination claims, drawing significantly on the European jurisprudence on discrimination. Mark appeared in the same case in the Court of Appeal: Secretary of State for Justice v Windle & Arada  EWCA Civ 459.
Mark has also appeared in the Employment Appeal Tribunal successfully resisting appeals against the Registrar’s orders not to extend time for lodging an appeal, in cases concerning appeals against a costs orders and recently secured a Full Hearing in a disability discrimination appeal.
High Court Work
Although Mark’s practice is firmly focussed on cases in the Employment Tribunal, he has previously been instructed in employment cases in the High Court. These have included:
- Drafting Pleadings instructed on his own:
- Drafting Particulars of Claim in a case brought against former employees, alleging breach of confidence, breach of contract, and unlawful means conspiracy, seeking remedies including the delivery up of confidential information.
- Drafting the Defence for one of a number of Defendants in a claim alleging Breach of Contract, Inducement to Breach of Contract and Breach of Confidence.
- Drafting Pleadings instructed as a Junior:
- Instructed as a Junior to Gavin Mansfield KC, drafting the Defence and Counterclaim to a claim including multiple allegations of Breach of Contract.
- Dealing with an Application for Summary Judgment:
- Instructed as a Junior to Gavin Mansfield KC defending an Application for Summary Judgment including drafting a Witness Statement and identifying evidence in support, and drafting a skeleton argument for use at the Hearing.