Mark Whitcombe

Year of call 1994

CClerk

Paul Adams
020 7269 0305 Email Paul

Mark studied law at Wadham College, Oxford University where he gained a BA and BCL. He was awarded a Major Scholarship by Middle Temple and came to the Bar intending to build a practice in employment law.

Employment law remains his principal area of practice. He has been consistently recognised by the directories as a leading employment law junior and has been instructed in employment cases at every level up to the Supreme Court. He also sits as a Fee Paid Employment Judge.

Mark has extensive experience of employment and discrimination law claims and is regularly instructed by or on behalf of private individuals, trade unions, public bodies, NHS Trusts, government departments and large private sector employers. He has a national employment practice which generally involves legally complex and/or high value claims. He is regularly instructed in multiples involving many hundreds of claimants.

Although Mark has always maintained a nationwide employment practice, he relocated to Bristol in 1997 and has been involved in the activities of Old Square Chambers' Bristol base since then. He regularly speaks at lectures, seminars and in-house training on employment law topics.

Mark writes for employment law publications. He was the editor of the Encyclopaedia of Employment Law Bulletin from 2001 until 2008. He also co-wrote a Chapter on TUPE consultation in "UK & EU Employee Consultation" (Sweet & Maxwell, 2000) and has written many articles on employment and discrimination law topics for the New Law Journal and the ELA Briefing.

Mark is the regional chair of Industrial Law Society meetings in Bristol and an ex officio member of the Industrial Law Society Management Committee.

He is also a registered pupillage supervisor.

Quotations from recent editions of the professional directories include the following.

Chambers and Partners (2017): "He is extremely knowledgeable and a confident advocate. He is well liked and respected by clients."

Legal 500 (2016): “Adept at handling long and complex discrimination claims.”

Chambers & Partners (2016): “He has excellent technical ability, and can think on his feet and provide pragmatic solutions" and "Mark has a very down-to-earth, pragmatic approach and connects well with witnesses and internal clients."

Legal 500 (2015): “He has excellent technical ability, and can think on his feet.”

Legal 500 (2014): “a skilled advocate with very good attention to detail”.

Legal 500 (2013): "...'extremely capable and approachable' Mark Whitcombe, who is noted for his 'common sense and superb legal ability'".

Chambers & Partners (2013): “very strong advocate Mark Whitcombe inspires confidence in solicitors and clients and offers clear, no-nonsense advice”.

Legal 500 (2012): "an extremely capable, experienced, personable advocate".

Chambers & Partners (2012): "goes beyond the call of duty to give extra advice and assistance to clients."

Appointments

2007: Appointed to the Attorney’s General’s Panel of Counsel (South West). Appointment renewed in 2010 and 2015.

2009: Appointed a Fee-Paid Employment Judge.

2014: Assigned to sit additionally as a Fee-Paid Judge of the First-tier Tribunal (Immigration and Asylum Chamber).

2015: Appointed a Case Reviewer (Employment) for the Bar Pro Bono Unit.

2017: Appointed to the Board of Trustees of Avon and Bristol Law Centre.


Mark has specialised in employment and discrimination law for many years and has appeared at every level from Employment Tribunals to the Supreme Court.

He acts for employees, trade unions and employers of all sizes in a broad range of employment disputes, including unfair and wrongful dismissal, unlawful deductions from wages, whistle-blowing, equal pay, TUPE, collective bargaining, contractual disputes and all forms of discrimination. Increasingly Mark’s practice has focussed on legally complex and/or high value discrimination, TUPE, whistle-blowing and equal pay claims.

Mark also has well-recognised expertise in working time cases and disputes about holiday pay, having been involved in several of the leading cases. He is currently instructed in multiple holiday pay claims each involving many hundreds of claimants in the transport, engineering, manufacturing and construction sectors.

Mark has developed a niche specialism in injunctions and other civil remedies under the Protection from Harassment Act 1997. He has advised and represented parties seeking injunctions under that Act to prevent harassment of employees both in and outside the workplace.

Since being appointed to the Treasury Panel Mark has regularly advised and represented Government Departments and Agencies, including HM Revenue and Customs, the Department for Work and Pensions, the Ministry of Justice, the Environment Agency and the Ministry of Defence.

Notable cases include:

  • Unison v Lord Chancellor [2017] UKSC 51. The landmark judicial review concerning Employment Tribunal fees, in which the Supreme Court quashed the ET and EAT Fees Order 2013 on the basis that the fees regime prevented access to justice. The Supreme Court considered the constitutional right of access to courts as an inherent aspect of the rule of law, and surveyed common law, EU and ECHR principles of access to justice. Instructed by the intervener, the Equality and Human Rights Commission, led by Michael Ford QC.
  • Dudley MBC v Willetts & Others (UKEAT/0334/16/JOJ, Simler J). Whether voluntary overtime must be taken into account in the calculation of holiday pay under the Working Time Directive. Led by Michael Ford QC.
  • Joseph v Brighton and Sussex University Hospitals NHS Trust (UKEAT/0001/15, HHJ David Richardson). Represented the Respondent NHS Trust in a case concerning the extent of a Tribunal's duty to assist a party without legal representation.
  • Bear Scotland Ltd & Others v Fulton & Others, Hertel (UK) Ltd v Woods & Others, AMEC Group Ltd v Law & Others [2015] ICR 221, [2015] IRLR 15, [2015] 1 CMLR 40 (Langstaff J). Appeared as junior counsel for the employees in the Hertel and AMEC appeals, led by Michael Ford QC. Ground breaking appeal affecting 5 million workers in the UK. The President of the EAT held that annual leave under reg. 13 of the Working Time Regulations 1998 should be paid at a rate which included non-guaranteed overtime.
  • Neal v Freightliner UKEAT/0095/14. Appeal on paid annual leave issues, due to be heard along with the appeals in Bear Scotland, Hertel, and AMEC. Settled shortly before the EAT hearing. Led by Michael Ford QC.
  • Subsequently instructed in the related multi-claimant paid annual leave litigation in Packham v Freightliner.
  • Rogerson & Others v Network Rail Infrastructure Ltd (2014). Acted for the claimants in a multi-claimant private sector equal pay claim.
  • Environment Agency v Donnelly [2014] EqLR 13 (HHJ Burke QC). Represented the Environment Agency on appeal to the EAT and also at first instance in a lengthy and complex claim for disability discrimination and unfair dismissal.
  • Environment Agency v Donnelly (No.2)  [2015] All ER(D) 357 (HHJ Eady QC). Further appeal to the EAT on disability discrimination and unfair dismissal remedy issues.
  • Aldred & others v (1) Freightliner Heavy Haul Ltd (2) DB Schenker Rail (UK) Ltd. TUPE case concerning the haulage of coal by rail from pits and ports to power stations. The case arose from the collapse of Fastline Freight.
  • The National Union of Rail, Maritime and Transport Workers (RMT) & Others v Network Rail Infrastructure Ltd & Others. TUPE case arising from the well-publicised collapse of Jarvis Rail plc in March 2010.
  • Tiffin v Lester Aldridge LLP [2011] IRLR 105, EAT and also in the further appeal to the Court of Appeal led by Jennifer Eady QC [2012] EWCA Civ 35; [2012] 1 W.L.R. 1887; [2012] 2 All E.R. 1113; [2012] I.C.R. 647; [2012] I.R.L.R. 391. The appeals considered the employment status of a solicitor member of a LLP described as a ‘fixed share partner’, and whether he was an employee for the purpose of the right to claim unfair dismissal.
  • Williamson & Soden Solicitors v Briars (2011) UKEAT/0611/10, [2011] All ER (D) 101 (Aug) (Langstaff J). Represented the appellant firm of solicitors in an appeal concerning the employment status of a solicitor. In the course of giving judgment Langstaff J said, “I must pay tribute in particular to the succinctness, clarity and quality of the submissions of Mr Whitcombe”.
  • Leeds City Council v Woodhouse & Others [2010] IRLR 625, Court of Appeal. Represented Mr Woodhouse in an appeal concerning the construction and scope of the ‘contract workers’ provisions in section 7 of the Race Relations Act 1976 (now section 41 of the Equality Act 2010).
  • Unite the Union v Shanahan Engineering Ltd (UKEAT/0411/09) [2010] All ER (D) 108 (Mar) (HHJ Richardson). Represented the trade union in an appeal concerning collective redundancy consultation under s.188 TULRCA 1992. Guidance on the 'special circumstances' defence and assessment of the protective award.
  • D v X. Acted for the claimant police counter-terrorism officer in a whistleblowing case. The hearing was held in private under what was then rule 54 (National Security Proceedings).
  • Awty & Others v Hull City Council. Acted for GMB claimants in a multi-claimant equal pay claim.
  • Stringer & Others v Warwickshire County Council. Acted for the claimants in a multi-claimant equal pay claim.
  • Easton v Secretary of State for Work and Pensions. Acted for the Secretary of State in a claim for disability discrimination and trade union victimisation under s.146 TULRCA 1992.
  • Hayburn v North Glamorgan NHS Trust. Acted for the former Chief Executive of the respondent NHS Trust who had been dismissed for gross misconduct.
  • Hussain v (1) Department of Health (2) NHS West Midlands. Acted for NHS West Midlands in a case involving allegations of race discrimination arising from the restructuring of the Department of Health.
  • Hazelhurst v Virgin Trains. Disability discrimination case involving a train driver employed by Virgin Trains. The case received extensive coverage in the rail industry press and in the national media.
  • (1) Lane Group PLC (2) North Somerset Council v Farmiloe [2004] UKEAT/0352/03, [2004] PIQR P324, [2004] All ER (D) 08 (Mar), IDS Brief No. 759 (EAT). Acted for the Council at first instance and on appeal to the EAT. Disability discrimination and the obligation to supply personal protective equipment.
  • Carmarthen & Pumsaint Farmers v Evans (EAT) [2008] All ER (D) 114 (Mar) (Beatson J). Unfair dismissal time limits.
  • Buckwell v Ashfield District Council (EAT), [2002] All ER (D) 225 (May) (Holland J). Trade union victimisation under s.146 TULRCA 1992.
  • Ali v Glaxo Wellcome Plc (EAT) [2002] All ER (D) 26 (Jun) (HHJ McMullen QC). Acted for Glaxo Welcome plc in an appeal concerning compensation for race discrimination and the proper approach compensation for a lost chance of appointment.
  • Abegaze v Belesario & another UKEAT/57/00 (Burton J). Extensions of time for entering a notice of appearance, witness orders, bias.
  • Weigel and another v Brown UKEAT/211/98 (HHJ Pugsley). Continuing acts of discrimination, preliminary hearings.
  • Benefits Agency (DSS) v Ford UKEAT/759/98 (Morison J). Trade union victimisation contrary to s.146 TULRCA 1992.

 

Long-standing member of the following professional organisations:

Industrial Law Society
Employment Law Bar Association
Employment Lawyers Association
Bar Pro Bono Unit (also becoming an employment case reviewer in 2015)

Mark is the current regional chair of Industrial Law Society meetings in Bristol and an ex officio member of the Industrial Law Society Management Committee.

In addition to his work as a barrister Mark sits as a Fee Paid Employment Judge and a Fee Paid Judge of the First-tier Tribunal, Immigration and Asylum Chamber.

He is also a registered pupillage supervisor.


Mark has longstanding experience of advice and representation in matters of professional discipline and regulation.

Mark regularly represents health professionals at hearings before the Conduct and Competence Committees of the Nursing and Midwifery Council, the Health and Care Professions Council and the Care Council for Wales.

He has also advised and represented teachers in proceedings before the General Teaching Council (prior to its abolition) and the General Teaching Council for Wales.


Mark Whitcombe is a highly experienced employment and discrimination lawyer, advising and representing public and private sector employers, NHS Trusts, government ministries and departments, trade unions, charities and individual employees. In addition to litigation in courts and tribunals, he has been instructed to advise and present cases in internal disciplinary and appeal hearings.

Mark has also been a part-time Employment Judge since 2009, determining employment cases both as a judge sitting alone and also as the chair of a panel. Since 2014 he has also been a part-time Immigration Judge, hearing appeals against Home Office asylum and immigration decisions in the First-tier Tribunal.

pAwards

2017 C&P Leading individual 2016 L500 Leading Individual C&P 2016 Ranked Barrister L500 2015 leading individual Chambers & Partners 2015 Barrister Legal 500 Top Ranked Barrister 2014 Ranked in Chambers & Partners 2014 Ranked in Legal 500 2013

Mark studied law at Wadham College, Oxford University where he gained a BA and BCL. He was awarded a Major Scholarship by Middle Temple and came to the Bar intending to build a practice in employment law.

Employment law remains his principal area of practice. He has been consistently recognised by the directories as a leading employment law junior and has been instructed in employment cases at every level up to the Supreme Court. He also sits as a Fee Paid Employment Judge.

Mark has extensive experience of employment and discrimination law claims and is regularly instructed by or on behalf of private individuals, trade unions, public bodies, NHS Trusts, government departments and large private sector employers. He has a national employment practice which generally involves legally complex and/or high value claims. He is regularly instructed in multiples involving many hundreds of claimants.

Although Mark has always maintained a nationwide employment practice, he relocated to Bristol in 1997 and has been involved in the activities of Old Square Chambers' Bristol base since then. He regularly speaks at lectures, seminars and in-house training on employment law topics.

Mark writes for employment law publications. He was the editor of the Encyclopaedia of Employment Law Bulletin from 2001 until 2008. He also co-wrote a Chapter on TUPE consultation in "UK & EU Employee Consultation" (Sweet & Maxwell, 2000) and has written many articles on employment and discrimination law topics for the New Law Journal and the ELA Briefing.

Mark is the regional chair of Industrial Law Society meetings in Bristol and an ex officio member of the Industrial Law Society Management Committee.

He is also a registered pupillage supervisor.

Quotations from recent editions of the professional directories include the following.

Chambers and Partners (2017): "He is extremely knowledgeable and a confident advocate. He is well liked and respected by clients."

Legal 500 (2016): “Adept at handling long and complex discrimination claims.”

Chambers & Partners (2016): “He has excellent technical ability, and can think on his feet and provide pragmatic solutions" and "Mark has a very down-to-earth, pragmatic approach and connects well with witnesses and internal clients."

Legal 500 (2015): “He has excellent technical ability, and can think on his feet.”

Legal 500 (2014): “a skilled advocate with very good attention to detail”.

Legal 500 (2013): "...'extremely capable and approachable' Mark Whitcombe, who is noted for his 'common sense and superb legal ability'".

Chambers & Partners (2013): “very strong advocate Mark Whitcombe inspires confidence in solicitors and clients and offers clear, no-nonsense advice”.

Legal 500 (2012): "an extremely capable, experienced, personable advocate".

Chambers & Partners (2012): "goes beyond the call of duty to give extra advice and assistance to clients."

Appointments

2007: Appointed to the Attorney’s General’s Panel of Counsel (South West). Appointment renewed in 2010 and 2015.

2009: Appointed a Fee-Paid Employment Judge.

2014: Assigned to sit additionally as a Fee-Paid Judge of the First-tier Tribunal (Immigration and Asylum Chamber).

2015: Appointed a Case Reviewer (Employment) for the Bar Pro Bono Unit.

2017: Appointed to the Board of Trustees of Avon and Bristol Law Centre.


Mark has specialised in employment and discrimination law for many years and has appeared at every level from Employment Tribunals to the Supreme Court.

He acts for employees, trade unions and employers of all sizes in a broad range of employment disputes, including unfair and wrongful dismissal, unlawful deductions from wages, whistle-blowing, equal pay, TUPE, collective bargaining, contractual disputes and all forms of discrimination. Increasingly Mark’s practice has focussed on legally complex and/or high value discrimination, TUPE, whistle-blowing and equal pay claims.

Mark also has well-recognised expertise in working time cases and disputes about holiday pay, having been involved in several of the leading cases. He is currently instructed in multiple holiday pay claims each involving many hundreds of claimants in the transport, engineering, manufacturing and construction sectors.

Mark has developed a niche specialism in injunctions and other civil remedies under the Protection from Harassment Act 1997. He has advised and represented parties seeking injunctions under that Act to prevent harassment of employees both in and outside the workplace.

Since being appointed to the Treasury Panel Mark has regularly advised and represented Government Departments and Agencies, including HM Revenue and Customs, the Department for Work and Pensions, the Ministry of Justice, the Environment Agency and the Ministry of Defence.

Notable cases include:

  • Unison v Lord Chancellor [2017] UKSC 51. The landmark judicial review concerning Employment Tribunal fees, in which the Supreme Court quashed the ET and EAT Fees Order 2013 on the basis that the fees regime prevented access to justice. The Supreme Court considered the constitutional right of access to courts as an inherent aspect of the rule of law, and surveyed common law, EU and ECHR principles of access to justice. Instructed by the intervener, the Equality and Human Rights Commission, led by Michael Ford QC.
  • Dudley MBC v Willetts & Others (UKEAT/0334/16/JOJ, Simler J). Whether voluntary overtime must be taken into account in the calculation of holiday pay under the Working Time Directive. Led by Michael Ford QC.
  • Joseph v Brighton and Sussex University Hospitals NHS Trust (UKEAT/0001/15, HHJ David Richardson). Represented the Respondent NHS Trust in a case concerning the extent of a Tribunal's duty to assist a party without legal representation.
  • Bear Scotland Ltd & Others v Fulton & Others, Hertel (UK) Ltd v Woods & Others, AMEC Group Ltd v Law & Others [2015] ICR 221, [2015] IRLR 15, [2015] 1 CMLR 40 (Langstaff J). Appeared as junior counsel for the employees in the Hertel and AMEC appeals, led by Michael Ford QC. Ground breaking appeal affecting 5 million workers in the UK. The President of the EAT held that annual leave under reg. 13 of the Working Time Regulations 1998 should be paid at a rate which included non-guaranteed overtime.
  • Neal v Freightliner UKEAT/0095/14. Appeal on paid annual leave issues, due to be heard along with the appeals in Bear Scotland, Hertel, and AMEC. Settled shortly before the EAT hearing. Led by Michael Ford QC.
  • Subsequently instructed in the related multi-claimant paid annual leave litigation in Packham v Freightliner.
  • Rogerson & Others v Network Rail Infrastructure Ltd (2014). Acted for the claimants in a multi-claimant private sector equal pay claim.
  • Environment Agency v Donnelly [2014] EqLR 13 (HHJ Burke QC). Represented the Environment Agency on appeal to the EAT and also at first instance in a lengthy and complex claim for disability discrimination and unfair dismissal.
  • Environment Agency v Donnelly (No.2)  [2015] All ER(D) 357 (HHJ Eady QC). Further appeal to the EAT on disability discrimination and unfair dismissal remedy issues.
  • Aldred & others v (1) Freightliner Heavy Haul Ltd (2) DB Schenker Rail (UK) Ltd. TUPE case concerning the haulage of coal by rail from pits and ports to power stations. The case arose from the collapse of Fastline Freight.
  • The National Union of Rail, Maritime and Transport Workers (RMT) & Others v Network Rail Infrastructure Ltd & Others. TUPE case arising from the well-publicised collapse of Jarvis Rail plc in March 2010.
  • Tiffin v Lester Aldridge LLP [2011] IRLR 105, EAT and also in the further appeal to the Court of Appeal led by Jennifer Eady QC [2012] EWCA Civ 35; [2012] 1 W.L.R. 1887; [2012] 2 All E.R. 1113; [2012] I.C.R. 647; [2012] I.R.L.R. 391. The appeals considered the employment status of a solicitor member of a LLP described as a ‘fixed share partner’, and whether he was an employee for the purpose of the right to claim unfair dismissal.
  • Williamson & Soden Solicitors v Briars (2011) UKEAT/0611/10, [2011] All ER (D) 101 (Aug) (Langstaff J). Represented the appellant firm of solicitors in an appeal concerning the employment status of a solicitor. In the course of giving judgment Langstaff J said, “I must pay tribute in particular to the succinctness, clarity and quality of the submissions of Mr Whitcombe”.
  • Leeds City Council v Woodhouse & Others [2010] IRLR 625, Court of Appeal. Represented Mr Woodhouse in an appeal concerning the construction and scope of the ‘contract workers’ provisions in section 7 of the Race Relations Act 1976 (now section 41 of the Equality Act 2010).
  • Unite the Union v Shanahan Engineering Ltd (UKEAT/0411/09) [2010] All ER (D) 108 (Mar) (HHJ Richardson). Represented the trade union in an appeal concerning collective redundancy consultation under s.188 TULRCA 1992. Guidance on the 'special circumstances' defence and assessment of the protective award.
  • D v X. Acted for the claimant police counter-terrorism officer in a whistleblowing case. The hearing was held in private under what was then rule 54 (National Security Proceedings).
  • Awty & Others v Hull City Council. Acted for GMB claimants in a multi-claimant equal pay claim.
  • Stringer & Others v Warwickshire County Council. Acted for the claimants in a multi-claimant equal pay claim.
  • Easton v Secretary of State for Work and Pensions. Acted for the Secretary of State in a claim for disability discrimination and trade union victimisation under s.146 TULRCA 1992.
  • Hayburn v North Glamorgan NHS Trust. Acted for the former Chief Executive of the respondent NHS Trust who had been dismissed for gross misconduct.
  • Hussain v (1) Department of Health (2) NHS West Midlands. Acted for NHS West Midlands in a case involving allegations of race discrimination arising from the restructuring of the Department of Health.
  • Hazelhurst v Virgin Trains. Disability discrimination case involving a train driver employed by Virgin Trains. The case received extensive coverage in the rail industry press and in the national media.
  • (1) Lane Group PLC (2) North Somerset Council v Farmiloe [2004] UKEAT/0352/03, [2004] PIQR P324, [2004] All ER (D) 08 (Mar), IDS Brief No. 759 (EAT). Acted for the Council at first instance and on appeal to the EAT. Disability discrimination and the obligation to supply personal protective equipment.
  • Carmarthen & Pumsaint Farmers v Evans (EAT) [2008] All ER (D) 114 (Mar) (Beatson J). Unfair dismissal time limits.
  • Buckwell v Ashfield District Council (EAT), [2002] All ER (D) 225 (May) (Holland J). Trade union victimisation under s.146 TULRCA 1992.
  • Ali v Glaxo Wellcome Plc (EAT) [2002] All ER (D) 26 (Jun) (HHJ McMullen QC). Acted for Glaxo Welcome plc in an appeal concerning compensation for race discrimination and the proper approach compensation for a lost chance of appointment.
  • Abegaze v Belesario & another UKEAT/57/00 (Burton J). Extensions of time for entering a notice of appearance, witness orders, bias.
  • Weigel and another v Brown UKEAT/211/98 (HHJ Pugsley). Continuing acts of discrimination, preliminary hearings.
  • Benefits Agency (DSS) v Ford UKEAT/759/98 (Morison J). Trade union victimisation contrary to s.146 TULRCA 1992.

 

Long-standing member of the following professional organisations:

Industrial Law Society
Employment Law Bar Association
Employment Lawyers Association
Bar Pro Bono Unit (also becoming an employment case reviewer in 2015)

Mark is the current regional chair of Industrial Law Society meetings in Bristol and an ex officio member of the Industrial Law Society Management Committee.

In addition to his work as a barrister Mark sits as a Fee Paid Employment Judge and a Fee Paid Judge of the First-tier Tribunal, Immigration and Asylum Chamber.

He is also a registered pupillage supervisor.


Mark has longstanding experience of advice and representation in matters of professional discipline and regulation.

Mark regularly represents health professionals at hearings before the Conduct and Competence Committees of the Nursing and Midwifery Council, the Health and Care Professions Council and the Care Council for Wales.

He has also advised and represented teachers in proceedings before the General Teaching Council (prior to its abolition) and the General Teaching Council for Wales.


Mark Whitcombe is a highly experienced employment and discrimination lawyer, advising and representing public and private sector employers, NHS Trusts, government ministries and departments, trade unions, charities and individual employees. In addition to litigation in courts and tribunals, he has been instructed to advise and present cases in internal disciplinary and appeal hearings.

Mark has also been a part-time Employment Judge since 2009, determining employment cases both as a judge sitting alone and also as the chair of a panel. Since 2014 he has also been a part-time Immigration Judge, hearing appeals against Home Office asylum and immigration decisions in the First-tier Tribunal.

pAwards

2017 C&P Leading individual 2016 L500 Leading Individual C&P 2016 Ranked Barrister L500 2015 leading individual Chambers & Partners 2015 Barrister Legal 500 Top Ranked Barrister 2014 Ranked in Chambers & Partners 2014 Ranked in Legal 500 2013
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