Ben Cooper QC

Year of call 2000 Silk 2017

CClerk

William Meade
020 7269 0360 Email William

Before taking silk in February 2017, Ben was ranked in Band 1 for employment law in both Chambers & Partners 2017 and Legal 500 2016 and was described by Legal 500 as “The top employment junior at the Bar, who combines formidable intellect with excellent client skills.” Chambers & Partners notes that Ben is “widely praised by clients and peers as an outstanding advocate who is incredibly hard-working and grasps the details incredibly quickly” and cites sources who say that Ben is "an excellent tactician who manages complex legal and sensitive employment issues with a relaxed manner” and “an all-round consummate employment lawyer who is incredibly capable and knowledgeable. He is able to picks up facts and run with them and he has excellent attention to detail."

Ben’s principal areas of practice are employment, discrimination and industrial relations. Ben acts for employers, employees and trade unions in all areas of employment, discrimination and industrial relations law. He regularly appears in the High Court, Court of Appeal, Employment Appeal Tribunal, employment tribunals and CAC.

Ben’s clients include NHS bodies and private healthcare organisations, major trade unions, education institutions, major airlines, financial and other commercial organisations and claimants with complex or high-value claims.

Ben’s other areas of practice include professional discipline, pensions, public law and human rights.

Within his principal and other areas of practice, Ben has particular expertise in:

  • Injunction proceedings – Ben has extensive experience acting for both claimants and defendants in claims for interim or final injunctive relief to enforce rights arising from contracts of employment, including claims (especially by doctors) relating to compliance with disciplinary procedures, and restrictive covenant/breach of confidence claims.
  • Strike injunctions and industrial relations – Ben has appeared in leading and high-profile cases in the High Court and Court of Appeal regarding strike injunctions, collective bargaining and related disputes. He also appears in recognition disputes before the CAC.
  • Complex or high value contractual disputes – Ben has appeared in test cases concerning the construction of collective agreements and regularly acts in complex or high value contractual claims in the civil courts.
  • TUPE – Ben appeared in the leading case on service provision change (Metropolitan Resources Ltd v Churchill Dulwich & others) and regularly acts in multiple claims concerning disputed transfers.
  • Complex or multiple discrimination claims – Ben is frequently instructed in long or complex discrimination claims, especially those involving multiple discrimination strands.
  • Equal pay – Ben is instructed on behalf of ASDA in the largest private sector equal pay claim of its kind, on behalf of the Claimants in a multiple claim against HMRC with an appeal pending before the EAT and in other multiple actions against public sector bodies (the Met Office and the MoD). He has appeared in a number of the leading appellate equal pay cases over the last 15 years.
  • Human rights and public law – Ben is instructed in a pending claim in Strasbourg for breach of Article 11 and is also currently acting in the group blacklisting litigation concerning the construction industry blacklist. He has appeared for claimants in successful claims under the HRA and for judicial review against public sector employers for breach of workers’ human rights in the employment context.

Ben is a member of ELBA, ELA and ILS.

Current or recent cases of note

  • Brierley & others v ASDA Stores Ltd (on-going) – Ben is instructed on behalf of ASDA in the largest private sector multiple equal pay claim of its kind.
  • Hartley & others v King Edward VI College [2017] UKSC 39 – Test case concerning the application of the Apportionment Act 1870 to the collective agreement governing sixth-form teachers’ terms and conditions to determine correct deduction for participation in strike action.
  • Argos Ltd v Unite the Union (QBD, 26 May 2017, transcript awaited) – First case to consider the nature and extent of the information required to satisfy the new requirement for a summary of the trade dispute to be included on the ballot paper for industrial action. This case also upheld the union’s right to strike in support of measures sought from a transferor with a view to protecting the position of employees post-transfer, distinguishing UCLH v Unison [1999] ICR 204, CA.
  • British Airline Pilots’ Association v Jet2.com Ltd [2017] ICR 475, CA – Case concerning the scope of statutory collective bargaining in respect of ‘pay, hours and holiday’ pursuant to Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
  • Adeshina v St George’s Healthcare NHS Trust & others [2017] EWCA Civ 257; [2015] IRLR 704, EAT – significance of disciplinary ‘charges’ within overall context of management case; scope for disciplinary appeal to ‘fix’ factual findings; extent of findings/reasons ET is required to give to support rejection of wrongful dismissal claim against context of detailed findings on unfair dismissal; whether unreasonable conduct and minority protected characteristic are sufficient to shift burden of proof in direct discrimination claim; and (in the EAT, with the point not being appealed to the CA), the correct test for bias in appeal panel for purposes of unfair dismissal.
  • McNeil & others v HMRC (appeal before the EAT pending) – Pending appeal in multiple equal pay claim concerning the test for ‘particular disadvantage’ in length of service cases, in particular whether the ET can have regard to evidence of differential distribution or is limited to considering differences in average total basic pay. The appeal will also consider the implications of the Supreme Court’s judgment in Essop & Naeem [2017] ICR 640, SC, for cases of this kind, including whether Armstrong [2006] IRLR 124, CA has been effectively overruled.
  • The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.

 


Before taking silk in February 2017, Ben was ranked by both Chambers & Partners and Legal 500 as a Band 1 leading junior in employment law. Ben acts for employers, employees and trade unions across the whole range of employment, discrimination and industrial relations claims.

Ben appears regularly in employment claims in the High Court, Court of Appeal, EAT, employment tribunals and before the CAC.

As well as appearing regularly in long or complex discrimination claims in the employment tribunals, Ben has developed particular expertise, and has appeared in some of the leading cases, in the following areas:

  • Claims for injunctive relief in relation to internal disciplinary and capability procedures;
  • Complex or high value contractual disputes in the High Court;
  • Industrial relations, including industrial action injunctions;
  • TUPE;
  • Equal pay;
  • Complex or multiple discrimination claims;
  • Employment claims involving breaches of human rights.

 

Notable cases

Injunctive relief in respect of internal disciplinary procedures

  • Al Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] Med LR 120, QB; (No. 2) [2015] EWHC 3096, QB – case concerning the proper exercise of the power to exclude a doctor under MHPS in circumstances where relationships between the doctor and his surgical team had broken down, and (in second claim) circumstances in which the Court will intervene to grant injunctive relief to restrain a hearing to consider dismissal on grounds of relationship breakdown
  • Chakrabarty v Ipswich Hospital NHS Trust [2014] Med LR 379, QB – case concerning the process to be followed under MHPS when deciding whether to dismiss a doctor on grounds of capability in circumstances where NCAS have not advised that he is irremediable
  • McMillan v Airedale NHS Foundation Trust [2014] IRLR 803, CA – whether employer can increase sanction on appeal; whether employee can withdraw appeal after re-hearing of facts but before sanction decision
  • Rosenbaum v Ealing Hospital NHS Trust (2014, QB) – claim by consultant urologist for injunction to prevent disciplinary proceedings and lift exclusion/restrictions on practice
  • Lu v Nottingham University Hospitals NHS trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent
  • Lloyd-Owen v Spire Healthcare Ltd [2013] EWHC 3542 (QB) – claim by nurse for injunction to prevent disciplinary hearing proceeding
  • Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) – claim by consultant psychiatrist to prevent disciplinary hearing proceeding
  • Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med LR 163, QB – claim by consultant paediatrician for injunction to prevent disciplinary hearing proceeding

Complex or high value contractual disputes

  • Hartley & others v King Edward VI College [2017] UKSC 39 (Claimants’ appeal to Supreme Court, to be heard February 2017) – application of the Apportionment Act 1870 to the collective agreement and correct method of calculating deduction from pay for a day’s strike action
  • Lu v Nottingham University Hospitals NHS trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent
  • Amey v Peter Symonds College [2014] IRLR 206, QB – construction of collective agreement and correct method of calculating deduction from pay for a day’s strike action
  • Gilgrove Ltd v Hay [2013] ICR 1139, CA – interpretation of collective agreement

Industrial relations, including industrial action injunctions

  • Argos Ltd v Unite the Union (QBD, 26 May 2017, transcript awaited) – First case to consider the nature and extent of the information required to satisfy the new requirement for a summary of the trade dispute to be included on the ballot paper for industrial action. This case also upheld the union’s right to strike in support of measures sought from a transferor with a view to protecting the position of employees post-transfer, distinguishing UCLH v Unison [1999] ICR 204, CA
  • British Airline Pilots’ Association v Jet2.com Ltd [2017] ICR 475, CA Case concerning the scope of statutory collective bargaining in respect of ‘pay, hours and holiday’ pursuant to Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992
  • Unite v Fowler WelchCoolchain Ltd TUR1/786/2012 (2013, CAC) – determining correct bargaining unit; method of collective bargaining
  • London Underground Ltd v ASLEF [2011] EWHC 3506 (QB) – strike injunction
  • Ritchie v UCATT [2011] EWHC 3613 (Ch) – derivative action; trade union election procedure
  • Talbot v General Federation of Trade Unions [2011] EWHC 84 (QB) – construction of trade union rules
  • Unite v Quinn Glass TUR1/754/2011 (2011, CAC) – determining correct bargaining unit
  • British Airways plc v Unite [2010] IRLR 809, HC & CA – a leading strike injunction case

Discrimination

  • Adeshina v St George’s Healthcare NHS Trust & others [2017] EWCA Civ 257; [2015] IRLR 704, EAT (Claimant’s appeal to Court of Appeal, to be heard March 2017) – Whether unreasonable conduct and minority protected characteristic are sufficient to shift burden of proof in direct discrimination claim; correct test for bias in appeal panel for purposes of unfair dismissal
  • Edie & others v HCL Insurance BPO Services Ltd [2015] ICR 713, EAT – Indirect age discrimination claim arising from harmonisation of terms following TUPE transfer where longer-serving transferred employees lost more beneficial terms than others
  • Okoro & another v Taylor Woodrow Construction Ltd & others [2013] ICR 580, CA – application of limitation period to discrimination claim by agency workers in respect of a decision by the principal to ban them from its site
  • Lisboa v Realpubs Ltd [2011] EqLR 267, EAT – sexual orientation discrimination arising by requiring bar manager to work in environment that discriminated against gay customers
  • Hinsley v Chief Constable of West Mercia Constabulary (2010) EAT – failure to make reasonable adjustments by allowing retraction of resignation made whilst unwell due to disability

Whistleblowing

  • Zia & others v Brighton & Sussex University Hospital NHS Trust (ET, 2016) – acted for NHS Trust in complex and sensitive claim (and associated appeals) arising from misuse by employees (doctors) of illicit recording of legally privileged meeting and to what extent their (mis-)use of that material constitutes protected disclosures
  • Pennal v BL Law Ltd (ET, 2013) – successfully defended firm of solicitors against seven-figure whistleblowing claim by former senior litigator

Human rights in employment and industrial relations law

  • The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled May 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.
  • Brough v UK (ECHR, pending) - Breach of Article 11 arising from the State’s failure to provide adequate protection against blacklisting on trade union grounds
  • Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB)  – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA
  • Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing

Equal pay

  • Brierley & others v ASDA Stores Ltd (on-going) – Acting for ASDA in largest private sector multiple equal pay claim of its kind.
  • McNeil & others v HMRC (EAT, pending) - Acting for claimants in multiple claim against HMRC arising from disparate impact caused by the operation of length of service; appeal pending in EAT on the test for ‘particular disadvantage’ and on the implications of the Supreme Court’s judgment in Essop & Naeem [2017] ICR 640, SC, for cases of this kind, including whether Armstrong [2006] IRLR 124, CA has been effectively overruled
  • Wilson v Health & Safety Executive [2010] IRLR 59, CA – justification where difference in pay is due to length of service
  • Gutridge v Sodexo Ltd [2009] IRLR 721, CA - application of TUPE to equality clause and effect of transfer on equal pay limitation period
  • Home Office v. Bailey & others [2004] IRLR 192; [2005] 369 & 757, EAT & CA – test for disparate impact; partial justification

TUPE

  • BT Managed Services Ltd v Edwards & another [2015] IRLR 994, EAT – whether employee on long term absence and in receipt of PHI is assigned to organised grouping of employees that transferred
  • Edie & others v HCL Insurance BPO Services Ltd (ET, 2013) – whether introduction of new terms and conditions related to transfer
  • Metropolitan Resources Ltd v Churchill Dulwich & others [2009] IRLR 700, EAT – leading case on service provision change
  • Gutridge & others v Sodexo Ltd [2009] IRLR 721, CA – application of TUPE to equality clause and effect of transfer on equal pay limitation period

Ben has extensive experience of the healthcare sector and has acted for practitioners in professional regulatory proceedings as well as in related civil and employment proceedings.

Notable cases

 Al Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] Med LR 120, QB; (No. 2) [2015] EWHC 3096, QB – case concerning the proper exercise of the power to exclude a doctor under MHPS in circumstances where relationships between the doctor and his surgical team had broken down, , and (in second claim) circumstances in which the Court will intervene to grant injunctive relief to restrain a hearing to consider dismissal on grounds of relationship breakdown
• Chakrabarty v Ipswich Hospital NHS Trust [2014] Med LR 379, QB – case concerning the process to be followed under MHPS when deciding whether to dismiss a doctor on grounds of capability in circumstances where NCAS have not advised that he is irremediable
 Rosenbaum v Ealing Hospital NHS Trust (2014, QB) – claim by consultant urologist for injunction to prevent disciplinary proceedings and lift exclusion/restrictions on practice
• Lu v Nottingham University Hospitals NHS Trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent
• Lloyd-Owen v Spire Healthcare Ltd [2013] EWHC 3542 (QB) – claim by nurse for injunction to prevent disciplinary hearing proceeding
• Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) – claim by consultant psychiatrist to prevent disciplinary hearing proceeding
• Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med LR 163, QB – claim by consultant paediatrician for injunction to prevent disciplinary hearing proceeding
• Bowater v North West London Hospitals NHS Trust [2011] IRLR 331 – dismissal of nurse for straddling patient and making lewd remark outside band of reasonable responses
• Sarkar v Chief Constable of West Yorkshire Police [2010] IRLR 508, CA – inconsistent for employer to attempt informal resolution and then dismiss summarily


Ben acts in administrative/public law claims arising in the context of public sector employment, in particular on behalf of police officers. Cases include:

  • Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB) – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA
  • Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing

Ben has considerable experience of claims for breach of human rights in the employment or industrial relations context. He is currently instructed in two pending claims in Strasbourg for breach of Article 11 and is also currently acting in the group blacklisting litigation concerning the construction industry blacklist. He has appeared for claimants in successful claims under the HRA and for judicial review against public sector employers for breach of employees’ human rights in the employment context.

Notable cases

  • The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled May 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.
  • Brough v UK (ECHR, pending) - Breach of Article 11 arising from the State’s failure to provide adequate protection against blacklisting on trade union grounds
  • Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB) – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA
  •  Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing

Ben has experience acting in large group actions in respect of “toxic torts”. Cases include:

  • Sutradhar v. Natural Environment Research Council [2006] 4 All ER 490, House of Lords - class action for personal injury caused by arsenic contamination of water in Bangladesh which Defendant had not detected when carrying out scientific study of water in the affected areas
  • Pride & Partners and others v. Institute for Animal Health & others [2009] EWHC 685 (QB); [2009] N.P.C. 56 - Class action claims from 2007 foot and mouth outbreak

Ben has experience acting in large group actions in respect of “toxic torts”

Notable cases

  • Sutradhar v. Natural Environment Research Council [2006] 4 All ER 490, House of Lords – class action for personal injury caused by arsenic contamination of water in Bangladesh which Defendant had not detected when carrying out scientific study of water in the affected areas
  • Pride & Partners and others v Institute for Animal Health & others [2009] EWHC 685 (QB); [2009] N.P.C. 56 - Class action claims from 2007 foot and mouth outbreak

pAwards

Legal 500 2017 Leading Individual 2017 C&P Leading individual 2016 L500 Leading Individual C&P 2016 Ranked Barrister L500 2015 leading individual Chambers & Partners 2015 Barrister Ranked in Chambers & Partners 2014 Shortlisted Chambers Bar Awards - Junior of the Year Legal 500 Top Ranked Barrister 2014 Ranked in Legal 500 2013

Before taking silk in February 2017, Ben was ranked in Band 1 for employment law in both Chambers & Partners 2017 and Legal 500 2016 and was described by Legal 500 as “The top employment junior at the Bar, who combines formidable intellect with excellent client skills.” Chambers & Partners notes that Ben is “widely praised by clients and peers as an outstanding advocate who is incredibly hard-working and grasps the details incredibly quickly” and cites sources who say that Ben is "an excellent tactician who manages complex legal and sensitive employment issues with a relaxed manner” and “an all-round consummate employment lawyer who is incredibly capable and knowledgeable. He is able to picks up facts and run with them and he has excellent attention to detail."

Ben’s principal areas of practice are employment, discrimination and industrial relations. Ben acts for employers, employees and trade unions in all areas of employment, discrimination and industrial relations law. He regularly appears in the High Court, Court of Appeal, Employment Appeal Tribunal, employment tribunals and CAC.

Ben’s clients include NHS bodies and private healthcare organisations, major trade unions, education institutions, major airlines, financial and other commercial organisations and claimants with complex or high-value claims.

Ben’s other areas of practice include professional discipline, pensions, public law and human rights.

Within his principal and other areas of practice, Ben has particular expertise in:

  • Injunction proceedings – Ben has extensive experience acting for both claimants and defendants in claims for interim or final injunctive relief to enforce rights arising from contracts of employment, including claims (especially by doctors) relating to compliance with disciplinary procedures, and restrictive covenant/breach of confidence claims.
  • Strike injunctions and industrial relations – Ben has appeared in leading and high-profile cases in the High Court and Court of Appeal regarding strike injunctions, collective bargaining and related disputes. He also appears in recognition disputes before the CAC.
  • Complex or high value contractual disputes – Ben has appeared in test cases concerning the construction of collective agreements and regularly acts in complex or high value contractual claims in the civil courts.
  • TUPE – Ben appeared in the leading case on service provision change (Metropolitan Resources Ltd v Churchill Dulwich & others) and regularly acts in multiple claims concerning disputed transfers.
  • Complex or multiple discrimination claims – Ben is frequently instructed in long or complex discrimination claims, especially those involving multiple discrimination strands.
  • Equal pay – Ben is instructed on behalf of ASDA in the largest private sector equal pay claim of its kind, on behalf of the Claimants in a multiple claim against HMRC with an appeal pending before the EAT and in other multiple actions against public sector bodies (the Met Office and the MoD). He has appeared in a number of the leading appellate equal pay cases over the last 15 years.
  • Human rights and public law – Ben is instructed in a pending claim in Strasbourg for breach of Article 11 and is also currently acting in the group blacklisting litigation concerning the construction industry blacklist. He has appeared for claimants in successful claims under the HRA and for judicial review against public sector employers for breach of workers’ human rights in the employment context.

Ben is a member of ELBA, ELA and ILS.

Current or recent cases of note

  • Brierley & others v ASDA Stores Ltd (on-going) – Ben is instructed on behalf of ASDA in the largest private sector multiple equal pay claim of its kind.
  • Hartley & others v King Edward VI College [2017] UKSC 39 – Test case concerning the application of the Apportionment Act 1870 to the collective agreement governing sixth-form teachers’ terms and conditions to determine correct deduction for participation in strike action.
  • Argos Ltd v Unite the Union (QBD, 26 May 2017, transcript awaited) – First case to consider the nature and extent of the information required to satisfy the new requirement for a summary of the trade dispute to be included on the ballot paper for industrial action. This case also upheld the union’s right to strike in support of measures sought from a transferor with a view to protecting the position of employees post-transfer, distinguishing UCLH v Unison [1999] ICR 204, CA.
  • British Airline Pilots’ Association v Jet2.com Ltd [2017] ICR 475, CA – Case concerning the scope of statutory collective bargaining in respect of ‘pay, hours and holiday’ pursuant to Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
  • Adeshina v St George’s Healthcare NHS Trust & others [2017] EWCA Civ 257; [2015] IRLR 704, EAT – significance of disciplinary ‘charges’ within overall context of management case; scope for disciplinary appeal to ‘fix’ factual findings; extent of findings/reasons ET is required to give to support rejection of wrongful dismissal claim against context of detailed findings on unfair dismissal; whether unreasonable conduct and minority protected characteristic are sufficient to shift burden of proof in direct discrimination claim; and (in the EAT, with the point not being appealed to the CA), the correct test for bias in appeal panel for purposes of unfair dismissal.
  • McNeil & others v HMRC (appeal before the EAT pending) – Pending appeal in multiple equal pay claim concerning the test for ‘particular disadvantage’ in length of service cases, in particular whether the ET can have regard to evidence of differential distribution or is limited to considering differences in average total basic pay. The appeal will also consider the implications of the Supreme Court’s judgment in Essop & Naeem [2017] ICR 640, SC, for cases of this kind, including whether Armstrong [2006] IRLR 124, CA has been effectively overruled.
  • The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.

 


Before taking silk in February 2017, Ben was ranked by both Chambers & Partners and Legal 500 as a Band 1 leading junior in employment law. Ben acts for employers, employees and trade unions across the whole range of employment, discrimination and industrial relations claims.

Ben appears regularly in employment claims in the High Court, Court of Appeal, EAT, employment tribunals and before the CAC.

As well as appearing regularly in long or complex discrimination claims in the employment tribunals, Ben has developed particular expertise, and has appeared in some of the leading cases, in the following areas:

  • Claims for injunctive relief in relation to internal disciplinary and capability procedures;
  • Complex or high value contractual disputes in the High Court;
  • Industrial relations, including industrial action injunctions;
  • TUPE;
  • Equal pay;
  • Complex or multiple discrimination claims;
  • Employment claims involving breaches of human rights.

 

Notable cases

Injunctive relief in respect of internal disciplinary procedures

  • Al Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] Med LR 120, QB; (No. 2) [2015] EWHC 3096, QB – case concerning the proper exercise of the power to exclude a doctor under MHPS in circumstances where relationships between the doctor and his surgical team had broken down, and (in second claim) circumstances in which the Court will intervene to grant injunctive relief to restrain a hearing to consider dismissal on grounds of relationship breakdown
  • Chakrabarty v Ipswich Hospital NHS Trust [2014] Med LR 379, QB – case concerning the process to be followed under MHPS when deciding whether to dismiss a doctor on grounds of capability in circumstances where NCAS have not advised that he is irremediable
  • McMillan v Airedale NHS Foundation Trust [2014] IRLR 803, CA – whether employer can increase sanction on appeal; whether employee can withdraw appeal after re-hearing of facts but before sanction decision
  • Rosenbaum v Ealing Hospital NHS Trust (2014, QB) – claim by consultant urologist for injunction to prevent disciplinary proceedings and lift exclusion/restrictions on practice
  • Lu v Nottingham University Hospitals NHS trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent
  • Lloyd-Owen v Spire Healthcare Ltd [2013] EWHC 3542 (QB) – claim by nurse for injunction to prevent disciplinary hearing proceeding
  • Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) – claim by consultant psychiatrist to prevent disciplinary hearing proceeding
  • Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med LR 163, QB – claim by consultant paediatrician for injunction to prevent disciplinary hearing proceeding

Complex or high value contractual disputes

  • Hartley & others v King Edward VI College [2017] UKSC 39 (Claimants’ appeal to Supreme Court, to be heard February 2017) – application of the Apportionment Act 1870 to the collective agreement and correct method of calculating deduction from pay for a day’s strike action
  • Lu v Nottingham University Hospitals NHS trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent
  • Amey v Peter Symonds College [2014] IRLR 206, QB – construction of collective agreement and correct method of calculating deduction from pay for a day’s strike action
  • Gilgrove Ltd v Hay [2013] ICR 1139, CA – interpretation of collective agreement

Industrial relations, including industrial action injunctions

  • Argos Ltd v Unite the Union (QBD, 26 May 2017, transcript awaited) – First case to consider the nature and extent of the information required to satisfy the new requirement for a summary of the trade dispute to be included on the ballot paper for industrial action. This case also upheld the union’s right to strike in support of measures sought from a transferor with a view to protecting the position of employees post-transfer, distinguishing UCLH v Unison [1999] ICR 204, CA
  • British Airline Pilots’ Association v Jet2.com Ltd [2017] ICR 475, CA Case concerning the scope of statutory collective bargaining in respect of ‘pay, hours and holiday’ pursuant to Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992
  • Unite v Fowler WelchCoolchain Ltd TUR1/786/2012 (2013, CAC) – determining correct bargaining unit; method of collective bargaining
  • London Underground Ltd v ASLEF [2011] EWHC 3506 (QB) – strike injunction
  • Ritchie v UCATT [2011] EWHC 3613 (Ch) – derivative action; trade union election procedure
  • Talbot v General Federation of Trade Unions [2011] EWHC 84 (QB) – construction of trade union rules
  • Unite v Quinn Glass TUR1/754/2011 (2011, CAC) – determining correct bargaining unit
  • British Airways plc v Unite [2010] IRLR 809, HC & CA – a leading strike injunction case

Discrimination

  • Adeshina v St George’s Healthcare NHS Trust & others [2017] EWCA Civ 257; [2015] IRLR 704, EAT (Claimant’s appeal to Court of Appeal, to be heard March 2017) – Whether unreasonable conduct and minority protected characteristic are sufficient to shift burden of proof in direct discrimination claim; correct test for bias in appeal panel for purposes of unfair dismissal
  • Edie & others v HCL Insurance BPO Services Ltd [2015] ICR 713, EAT – Indirect age discrimination claim arising from harmonisation of terms following TUPE transfer where longer-serving transferred employees lost more beneficial terms than others
  • Okoro & another v Taylor Woodrow Construction Ltd & others [2013] ICR 580, CA – application of limitation period to discrimination claim by agency workers in respect of a decision by the principal to ban them from its site
  • Lisboa v Realpubs Ltd [2011] EqLR 267, EAT – sexual orientation discrimination arising by requiring bar manager to work in environment that discriminated against gay customers
  • Hinsley v Chief Constable of West Mercia Constabulary (2010) EAT – failure to make reasonable adjustments by allowing retraction of resignation made whilst unwell due to disability

Whistleblowing

  • Zia & others v Brighton & Sussex University Hospital NHS Trust (ET, 2016) – acted for NHS Trust in complex and sensitive claim (and associated appeals) arising from misuse by employees (doctors) of illicit recording of legally privileged meeting and to what extent their (mis-)use of that material constitutes protected disclosures
  • Pennal v BL Law Ltd (ET, 2013) – successfully defended firm of solicitors against seven-figure whistleblowing claim by former senior litigator

Human rights in employment and industrial relations law

  • The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled May 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.
  • Brough v UK (ECHR, pending) - Breach of Article 11 arising from the State’s failure to provide adequate protection against blacklisting on trade union grounds
  • Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB)  – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA
  • Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing

Equal pay

  • Brierley & others v ASDA Stores Ltd (on-going) – Acting for ASDA in largest private sector multiple equal pay claim of its kind.
  • McNeil & others v HMRC (EAT, pending) - Acting for claimants in multiple claim against HMRC arising from disparate impact caused by the operation of length of service; appeal pending in EAT on the test for ‘particular disadvantage’ and on the implications of the Supreme Court’s judgment in Essop & Naeem [2017] ICR 640, SC, for cases of this kind, including whether Armstrong [2006] IRLR 124, CA has been effectively overruled
  • Wilson v Health & Safety Executive [2010] IRLR 59, CA – justification where difference in pay is due to length of service
  • Gutridge v Sodexo Ltd [2009] IRLR 721, CA - application of TUPE to equality clause and effect of transfer on equal pay limitation period
  • Home Office v. Bailey & others [2004] IRLR 192; [2005] 369 & 757, EAT & CA – test for disparate impact; partial justification

TUPE

  • BT Managed Services Ltd v Edwards & another [2015] IRLR 994, EAT – whether employee on long term absence and in receipt of PHI is assigned to organised grouping of employees that transferred
  • Edie & others v HCL Insurance BPO Services Ltd (ET, 2013) – whether introduction of new terms and conditions related to transfer
  • Metropolitan Resources Ltd v Churchill Dulwich & others [2009] IRLR 700, EAT – leading case on service provision change
  • Gutridge & others v Sodexo Ltd [2009] IRLR 721, CA – application of TUPE to equality clause and effect of transfer on equal pay limitation period

Ben has extensive experience of the healthcare sector and has acted for practitioners in professional regulatory proceedings as well as in related civil and employment proceedings.

Notable cases

 Al Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] Med LR 120, QB; (No. 2) [2015] EWHC 3096, QB – case concerning the proper exercise of the power to exclude a doctor under MHPS in circumstances where relationships between the doctor and his surgical team had broken down, , and (in second claim) circumstances in which the Court will intervene to grant injunctive relief to restrain a hearing to consider dismissal on grounds of relationship breakdown
• Chakrabarty v Ipswich Hospital NHS Trust [2014] Med LR 379, QB – case concerning the process to be followed under MHPS when deciding whether to dismiss a doctor on grounds of capability in circumstances where NCAS have not advised that he is irremediable
 Rosenbaum v Ealing Hospital NHS Trust (2014, QB) – claim by consultant urologist for injunction to prevent disciplinary proceedings and lift exclusion/restrictions on practice
• Lu v Nottingham University Hospitals NHS Trust [2014] EWHC 690 (QB) – extent of employer’s power to impose requirements on doctor to disclose historic incidents when obtaining patient consent
• Lloyd-Owen v Spire Healthcare Ltd [2013] EWHC 3542 (QB) – claim by nurse for injunction to prevent disciplinary hearing proceeding
• Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 (QB) – claim by consultant psychiatrist to prevent disciplinary hearing proceeding
• Hussain v Surrey & Sussex Healthcare NHS Trust [2012] Med LR 163, QB – claim by consultant paediatrician for injunction to prevent disciplinary hearing proceeding
• Bowater v North West London Hospitals NHS Trust [2011] IRLR 331 – dismissal of nurse for straddling patient and making lewd remark outside band of reasonable responses
• Sarkar v Chief Constable of West Yorkshire Police [2010] IRLR 508, CA – inconsistent for employer to attempt informal resolution and then dismiss summarily


Ben acts in administrative/public law claims arising in the context of public sector employment, in particular on behalf of police officers. Cases include:

  • Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB) – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA
  • Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing

Ben has considerable experience of claims for breach of human rights in the employment or industrial relations context. He is currently instructed in two pending claims in Strasbourg for breach of Article 11 and is also currently acting in the group blacklisting litigation concerning the construction industry blacklist. He has appeared for claimants in successful claims under the HRA and for judicial review against public sector employers for breach of employees’ human rights in the employment context.

Notable cases

  • The Construction Industry Vetting Information Group Litigation (Blacklisting group litigation: High Court, settled May 2016) – Claims for conspiracy, misuse of private information, breach of the Data Protection Act 1998 and defamation arising from the operation of the construction industry blacklist from the 1970s to 2009. Ben acted for around 250 Claimants who were former members of Unite the Union, who together shared compensation of approximately £10.4 million.
  • Brough v UK (ECHR, pending) - Breach of Article 11 arising from the State’s failure to provide adequate protection against blacklisting on trade union grounds
  • Oxer-Patey v Commissioner of Police for the Metropolis [2013] EWHC 4751 (QB) – Provision in public sector pension scheme discriminating between legitimate and illegitimate children is contrary to ECHR, Art 14 and unlawful under the HRA
  •  Police Federation v Chief Constable of Cleveland Police (2012, Admin) – JR of police force’s improper use of informal employment process to take hair sample from officer for drugs testing

Ben has experience acting in large group actions in respect of “toxic torts”. Cases include:

  • Sutradhar v. Natural Environment Research Council [2006] 4 All ER 490, House of Lords - class action for personal injury caused by arsenic contamination of water in Bangladesh which Defendant had not detected when carrying out scientific study of water in the affected areas
  • Pride & Partners and others v. Institute for Animal Health & others [2009] EWHC 685 (QB); [2009] N.P.C. 56 - Class action claims from 2007 foot and mouth outbreak

Ben has experience acting in large group actions in respect of “toxic torts”

Notable cases

  • Sutradhar v. Natural Environment Research Council [2006] 4 All ER 490, House of Lords – class action for personal injury caused by arsenic contamination of water in Bangladesh which Defendant had not detected when carrying out scientific study of water in the affected areas
  • Pride & Partners and others v Institute for Animal Health & others [2009] EWHC 685 (QB); [2009] N.P.C. 56 - Class action claims from 2007 foot and mouth outbreak

pAwards

Legal 500 2017 Leading Individual 2017 C&P Leading individual 2016 L500 Leading Individual C&P 2016 Ranked Barrister L500 2015 leading individual Chambers & Partners 2015 Barrister Ranked in Chambers & Partners 2014 Shortlisted Chambers Bar Awards - Junior of the Year Legal 500 Top Ranked Barrister 2014 Ranked in Legal 500 2013
About cookies on our website

To find out more about what cookies are, which cookies we use on this website and how to delete and block cookies, please see our Which cookies we use page.

Click on the button below to accept the use of cookies on this website (this will prevent the dialogue box from appearing on future visits)