Marcus Pilgerstorfer

Marcus has an extensive employment and discrimination practice, undertaking advocacy and advisory work for both employers and employees in the Employment Tribunals, the Employment Appeal Tribunal and the Courts. He is regularly instructed in cases involving unfair and wrongful dismissals, deductions from wages (including the national minimum wage), contractual disputes (including confidential information and covenant enforcement), whistle blowing, TUPE, trade union activities, working time, commercial agents, and the full spectrum of discrimination work, including Equal Pay and part-time pensions cases.

 

Marcus' practice includes advising on and drafting Bills for Private Members to introduce to Parliament on employment issues. In 2004, he drafted the Gangmasters (Licensing) Bill for Jim Sheridan MP and in 2007 the Temporary and Agency Workers (Prevention from Less Favourable Treatment) Bill for Paul Farrelly MP. The former is now enacted as the Gangmasters (Licensing) Act 2004 and Marcus is ideally placed to advise and assist with issues arising under this legislation such as, for example, appeals against decisions made by the Gangmasters Licensing Authority (GLA), heard by the Employment Tribunals.

 

Islam Channel Ltd v Ridley (May 2009, EAT) [2009] All ER (D) 89 (Aug) (HHJ McMullen QC) Appeal establishing that a Tribunal makes no error of law by refusing to offset an excess in past mitigation earnings against its assessment of future loss of earnings where future employment income was inherently insecure. 

 

Barbara Carl v University of Sheffield (May 2009, EAT) [2009] IRLR 616 (HHJ Clark) Appeal establishing that (i) a real comparator was required in claims of part-time worker discrimination and (ii) that it is not necessary for part time status to be the sole ground for the treatment complained of. 

 

English v Thomas Sanderson Limited (December 2008, Court of Appeal) [2009] ICR 543; [2009] 2 All ER 468; [2009] IRLR 206; The Times 5 Jan 2009; [2008] EWCA Civ 1421 (Laws, Sedley, Lawrence Collins LLJ) Appeal establishing that repeated homophobic torment, including the word "faggot", was harassment "on grounds of sexual orientation" even though the complainant was not gay, the tormentors knew he was not gay, and that the complainant acknowledged that his tormentors knew he was not gay. The Court of Appeal, particularly Sedley LJ, recognised attribution cases as a legitimate class of transferred discrimination cases. Coleman v Attridge Law considered. 

 

Dombey v University of Brighton (September 2007, EAT) [2007] All ER (D) 176 (Dec) (HHJ McMullen QC) Appeal establishing need for Tribunal to consider Scally claim in contract. 

 

Enfield Technical Services Ltd v. Payne; Grace v. BF Components Ltd Court of Appeal [2008] ICR 1423; [2008] IRLR 500; The Times 2 Jun 2008; [2008] EWCA Civ 393 (Pill, Maurice Kay and Lloyd LLJ); EAT [2008] ICR 30; [2007] IRLR 840 (Elias P); EAT [2005] All ER (D) 06 (Oct) (HHJ Ansell) Joined appeals raising the question of how the illegality defence operates in cases of illegally performed contracts of employment where the employee claims unfair dismissal before an Employment Tribunal. In both cases, the illegality in question related to the proper compliance with legislation governing the payment of taxes and national insurance contributions on earnings obtained from the employment, in circumstances where the employee in question was responsible for instigating or maintaining the arrangement. Marcus represented the employer in the Grace case when the matter first came before the EAT in September 2005. Since then, he litigated the issue on remission to the Employment Tribunal in February 2006 and, again, upon further appeal to the EAT in June 2007. In February 2008, Marcus represented both employers before the Court of Appeal. 

 

Baldwin & Others v. Monmouth School & Others (November 2007, EAT) Unreported, EAT, 15.11.07 (HHJ Clark) Appeal in large 50-claimant part-time pensions equal pay claim establishing extent of discretion possessed by the Employment Judge to depart from the statutory equal value procedures set out in Schedule 6 of the Employment Tribunal Rules of Procedure Regulations when hearing equal value claims. 

 

Cameron v. NAAFI (September 2006, EAT) [2006] All ER (D) 205 (Dec) (HHJ McMullen QC) Appeal concerning the territorial reach of the Disability Discrimination Act 1995 and whether the provisions of national law are incompatible with the Framework Directive and/or Art 39 EC on the free movement of workers and/or the Human Rights Act 1998. 

 

Mattu v. University Hospitals of Coventry and Warwickshire NHS Trust (July 2006, High Court) [2006] EWHC 1774 (QB) [2007] LS Law Medical 122 (Eady J) Injunction claim seeking enforcement of a doctor's contractual disciplinary procedures. 

 

Smith & Others v. Manchester College of Arts and Technology (January 2007, EAT) [2007] All ER (D) 58 (Mar) (Bean J) Multiple claimant case of unfair dismissal by reason of trade union activities. Marcus conducted a 16 day hearing for the Claimants before the Manchester ET in 2006. The Tribunal heard detailed evidence spanning a period of a decade before concluding (by a majority) that the claimants' dismissals were by reason of their trade union activities. The matter then came before the EAT on MANCAT's appeal in 2007 and Bean J and members considered issues of perversity, adequacy of reasons and the Burnes/Barke procedure before the EAT. The appeal was dismissed. 

 

Pudney v. Network Rail Infrastructure Limited (March 2006, EAT) [2006] All ER (D) 118 (May) (HHJ McMullen QC) First appeal considering the meaning of the (now repealed) s98A(2) Employment Rights Act 1996 and its effect on 'Polkey' principles. The EAT also considered the effect on general fairness of obtaining new evidence at the appeal stage of an internal procedure and not disclosing the same to the employee. 

 

Clamp v. Aerial Systems (October 2004, EAT) [2004] All ER (D) 259 (Nov) (Burton P) Appeal considering the meaning of 'detriment' in claim under s45A Employment Rights Act 1996 for asserting rights under the Working Time Regulations. 

 

Hillcrest Care Ltd v. Morrison (July 2004, EAT) [2004] All ER (D) 220 (Oct) (Mitting J) Appeal concerning the way disparity of treatment arguments can be deployed in unfair dismissal cases and the need for Tribunals to apply the guidance in Hadjioannou v Coral Casinos. 

 

Palfrey v. Transco Plc (March 2004, EAT) [2004] IRLR 916 (Burton P) Appeal concerning the ability to amend/vary the effective date of termination in redundancy cases; also authority on the ability of a Court of Appeal decision to be per incuriam of previous EAT decisions. 

 

Select Service Partner Limited v. Okello (March 2003, EAT) Unreported, 27.3.03 (HHJ McMullen QC) Appeal requiring interpretation and application of Shamoon in a direct race discrimination claim.

 

Memberships

 

Discrimination Law Association.

Employment Lawyers Association.

Employment Law Bar Association.

European Employment Lawyers Association.

Industrial Law Society.