Simon Cheetham

Simon is an employment and discrimination law specialist, with a wide-ranging practice in the employment tribunal, High Court and appellate courts. He has written and lectured extensively on employment law and has been recognised as a leading junior in employment law by Chambers & Partners and The Legal 500 for many years.

Although his primary area of practice is employment and discrimination law, he also practises in the areas of pension law, professional discipline, sports law, as well as civil litigation arising out of workplace disputes.  His practice covers both private and public sectors, including education, financial services and healthcare.

He is also a CEDR trained mediator.

Simon is recommended by Chambers & Partners as a leader in employment law and 'is noted for his skill in handling discrimination cases and is commended for his "light touch and great presence in court"'.
 
The 2011 edition had him marked down as "an employment specialist who writes extensively on discrimination law. In court his ability to adopt the right note is much admired".

Previous recommendations have said:

"... appears on highly significant, complex cases. His recent cases include Rolls-Royce v. UNITE, the first age discrimination case to reach the Court of Appeal." (2010).
 
"... works across the board in employment law and his experience encompasses disciplinary hearings, high value High Court claims, restrictive covenants and non-contentious advisory work. He has taken the lead in preparation for the upcoming age discrimination legislation." (2009)
 
"Straightforward and client-friendly..." (2006)

Appointments

• Employment Tribunal Judge - fee-paid (London South); appointed 2002
• Bar Standards Board, Professional Conduct Committee 2008 – 2014; reserve panel 2014 - 2016
• Chairman, Royal Mail National Appeals Panel; appointed 2011
• ELBA Executive Committee 2014 – 2016
• ELA Training Committee 2016
• International Paralympic Committee; Anti-Doping Committee panel member; appointed 2016                                                                                                                                                                                            

Simon has also been featured on BBC's Panorama and – in February 2016 - on Inside Out, commenting upon working time and minimum wage issues, particularly for migrant workers.

Simon’s recent and current work includes: the leading holiday pay case of Lock v British Gas Trading Ltd, in which Simon has successfully represented the Claimant in the Employment Tribunal, European Court of Justice, Employment Appeal Tribunal and – most recently – the Court of Appeal (where he was led by Michael Ford QC); the forthcoming appeal in Fulton & Baxter v Bear Scotland in the Scottish Employment Appeal Tribunal concerning the three-month rule; R (on the application of Boots Management Services Ltd) v CAC in the Court of Appeal (led by John Hendy QC), which concerns trade union recognition; several holiday pay multiple claims and multi-day discrimination and whistleblowing claims; high-profile investigations for universities; an application to the ECHR on “sweetheart unions” (again led by John Hendy QC).

His recent reported cases have included: Lock v British Gas Trading Ltd [2014] ICR 813, ECJ; [2015] IRLR 438, ET; [2016] IRLR 316, EAT (pay in respect of annual leave); I-Lab Facilities Ltd v. Metcalfe [2013] IRLR 605, EAT (failure to inform and consult under TUPE); Commissioner of Police of the Metropolis v. Shaw [2012] ICR 464 (the EAT set out the principles to be applied by employment tribunals in the award of aggravated damages); Wardle v. Credit Agricole Corporate & Investment Bank [2011] ICR 1290 CA (uplifts on compensation and how the tribunal should approach long-term loss).

Simon has been recognised by Chambers & Partners as a leading junior in employment law for many years.

He has extensive experience of employment law and has frequently been instructed in complex and high-value claims.  He has particular expertise in discrimination law, but his practice covers the full range of employment cases, including industrial relations, TUPE, whistle blowing and contractual disputes.

Before moving to Old Square Chambers in 2011, Simon practised from Ely Place Chambers, where he was head of the employment group and where many of his cases had links with the media.  He has acted for or against all the major newspapers, as well as in claims and disputes involving film and television companies and media agencies.

Simon represents both employers and employees and has a wide client base.  On the respondent employer side, he frequently acts for NHS Trusts, local authorities, the police and other public bodies, as well as for financial institutions and corporate employers of all sizes. On the claimant employee side, he is instructed by and on behalf of trade unions and represents individuals in all types of employment.

As well as his first instance work in the employment tribunal and High Court, Simon has frequent experience of the EAT and the Court of Appeal. He has sat as a fee-paid employment judge (in London South) since 2002 and is a mediator (CEDR accredited).

Simon’s recent and current work includes: the leading holiday pay case of Lock v British Gas Trading Ltd, in which Simon has successfully represented the Claimant in the Employment Tribunal, European Court of Justice, Employment Appeal Tribunal and – most recently – the Court of Appeal (where he was led by Michael Ford QC); the forthcoming appeal in Fulton & Baxter v Bear Scotland in the Scottish Employment Appeal Tribunal concerning the three-month rule; R (on the application of Boots Management Services Ltd) v CAC in the Court of Appeal (led by John Hendy QC), which concerns trade union recognition; several holiday pay multiple claims and multi-day discrimination and whistleblowing claims; high-profile investigations for universities; an application to the ECHR on “sweetheart unions” (again led by John Hendy QC).

Simon undertakes some work on a Direct Access basis, mostly advising on contracts and settlement agreements.
 

Working Time

Lock v British Gas Trading Ltd: Simon has acted for the Claimant throughout this litigation, which has become the leading case on pay in respect of annual leave.  In 2012, he obtained a referral to the ECJ from the Employment Tribunal in Leicester; in Luxemburg (where Simon was led by Michael Ford QC), the Court held that commission was part of a worker’s normal remuneration (reported at [2014] ICR 813).  The Leicester Employment Tribunal then held that the domestic legislation could be interpreted in a way that conformed with the Working Time Directive; [2015] IRLR 438.  The Employment Appeal Tribunal (where Simon led Victoria Webb) dismissed British Gas’ appeal against that judgment [2016] IRLR 316.  The Court of Appeal (where Simon was again led by Michael Ford QC) has recently dismissed British Gas’ further appeal [2016] EWCA Civ 983.

He is instructed in the forthcoming appeal in Fulton & Baxter v Bear Scotland in the Scottish Employment Appeal Tribunal concerning the three-month rule.

Simon has been involved in several large multiple claims in respect of unpaid holiday pay, acting for both claimants and respondents. He has also advised extensively on holiday pay issues.

Discrimination

• Camden LBC v. Pegg [2013] EqLR 75, EAT: acting for the local authority, where EAT held that an agency worker was under a contract "personally to do any work" and therefore attracted the protection of discrimination laws (in this case in relation to disability).
• Commissioner of Police of the Metropolis v. Shaw [2012] ICR 464, [2012] IRLR 291: acting for Commissioner in appeal; Underhill P’s judgment sets out principles to be applied by employment tribunals in the award of aggravated damages.
• Commissioner of Police of the Metropolis v. Weeks [2012] EqLR 209, EAT: a civilian employee of the Metropolitan Police was entitled to bring a discrimination claim against the Commissioner for acts carried out by her line manager, who was from a different force.
• Rolls Royce v. Unite the Union [2010] ICR 1, [2009] IRLR 576, CA; acting for employer in Pt 8 proceedings to determine whether use of length of service in collectively agreed redundancy exercises could be justified under the Age Regulations. The Court of Appeal upheld the High Court decision ([2009] IRLR 49) that it could be justified.
• Driscoll v. News Group Newspapers (2010): disability discrimination claim brought by NoW journalist, resulting in £800,000 compensation
• Selina Scott v. Channel 5 (2008): represented Ms Scott in her age discrimination claim against Channel 5 News.
• Cook v. King Fahad Academy (2008): represented the Academy in race discrimination and unfair dismissal claims involving alleged "race hate" Islamic textbooks.

 
Termination of Employment

• Johnston v. Welsh National Opera [2012] EWCA Civ 1046: issues of construction in a collective agreement, where the principal oboist of the WNO was dismissed for poor performance.
• Wardle v. Credit Agricole Corporate & Investment Bank [2011] ICR 1290, [2011] IRLR 604, CA: acting for claimant in high-value City claim for unfair dismissal and victimisation; the CA considered the principles involved in awarding an uplift on compensation and also how the tribunal should approach long-term loss (also on remedy, [2011] IRLR 819).
• Andy Gray v. BSkyB (2011): advising Mr Gray on potential claims arising from the termination of his contract with BSKYB following on-air sexist remarks.
• Orr v. Milton Keynes Council [2011] ICR 704, [2011] IRLR 317, CA: acting for Council in unfair dismissal/race discrimination claim where CA considered what an employer "knows" for the purposes of a fair dismissal.
• (1) William A Bong Ltd (2) Sir Elton John v. Halley (2008): acted for Claimants in breach of contract proceedings in High Court and parallel ET proceedings alleging age discrimination (where they were the respondents).
• Horozov & Raeva v. Black Sea Trade and Development Bank (2006): appeared before the administrative tribunal of this international bank in Thessaloniki, Greece in disputes over dismissals.
• Faria Alam v. The Football Association (2005): represented Ms Alam in her highly publicised unfair dismissal and discrimination claim against the FA, following her involvement with Sven Goran Eriksson.

 
Jurisdictional & Procedural

• Pennine Acute Hospitals NHS Trust v. Power (2011) UKEAT/0019/11: the distinction between acts and their consequences when considering limitation in discrimination claims.
• Rixon v. Commissioner of Police of the Metropolis (2010) UKEAT 0126/10: extension of time where 'not reasonably practicable'; Rule 3(9).
• Fraser v. HLMAD Ltd [2006] ICR 1395, [2006] IRLR 687, CA: choice of jurisdiction in wrongful dismissal/breach of contract claims.
• Dickie v. Cathay Pacific Airways et al [2004] ICR 457, EAT: territorial jurisdiction in the employment tribunal.

TUPE

• I-Lab Facilities Ltd v. Metcalfe [2013] IRLR 605: acting for successful appellants, where EAT held that a claim for a failure to inform and consult under TUPE cannot be brought in respect of a transfer that does not proceed.

Industrial Relations

R (on the application of Boots Management Services Ltd) v CAC [2014] IRLR 887: acting for the PDAU in High Court proceedings arising out of a CAC decision on union recognition and “sweetheart” unions; specifically, applying for a declaration of incompatibility in relation to provisions of TULR(C)A 1992 Sch. A1 (led by John Hendy QC).  The case is listed to be heard by the Court of Appeal in November.

Simon has wide experience advising and acting for both unions and employers in industrial disputes, including injunction applications, and has also advised on issues such as recognition, collective agreements and union-related detriments and dismissals.  He also has experience of hearings before the CAC and the Certification Officer.

Memberships

• Employment Law Bar Association
• Employment Lawyers' Association
• Industrial Law Society

 
Publications & Training

• Atkins' Court Forms. Co-contributor (with Victoria Webb) to 2013 edition of Employment Law volume
• "Equality and Discrimination - the New Law" (co-author with Brian Doyle et al, Jordans, July 2010)
• "Age Discrimination - the New Law" (Jordans, 2006)
• Articles for New Law Journal, ELA Briefing

Simon has many years' experience of providing training on all aspects of employment, discrimination and industrial relations law at conferences, lectures and seminars, both in-house, for ELA and for leading training providers. He has been a speaker at the annual conference for Employment Judges and is a trainer for the Employment Judges in London South.

Simon has a growing pensions practice and his pension law experience includes: pension loss in high-value tribunal claims; employers’ pension obligations; pensions and discrimination (age and sex); problems arising out of winding up; ill health early retirement; auto-enrolment; and public sector pensions (including public law challenges).

Current and Recent Cases

• Ellis v Cabinet Office [2015] EWCA Civ 252, [2015] Pens.LR 379: acting pro bono for a POA member in an appeal concerning the right to an unreduced pension on transfer from public to private sector (leading Sophie Beesley).
• Oxer-Patey v. Commissioner of Police of the Metropolis [2013] EWHC 4751 (QB): acting for the Commissioner in High Court proceedings considering Police Pensions and Convention Rights.
• Advising a major trade union on issues arising from changes to the PCSPS, including age discrimination.
• Advising a group of university lecturers on USS issues.

Training
Simon has lectured both in-house and for the ELA on auto-enrolment, as well as on police pensions.

Simon has advised and represented health professionals and their employers in proceedings before disciplinary panels, professional bodes and in the courts (including injunctions).

He has presented the management case at a number of MHPS hearings.  His recent experience has also included interim and full hearings before the NMC, advising a non-UK trained doctor on a refusal of registration by the GMC, advising a number of doctors on misconduct issues before the GMC, representing a doctor at internal hearings on capability issues.  He also has extensive experience of the NHS through frequent representation in the employment tribunal.

In addition, Simon has experience acting both for academics and for colleges and universities in internal disciplinary procedures.  This includes acting as an investigating officer to determine whether conduct proceedings should be commenced.  His recent investigations have been carried out for the Universities of Cambridge, Plymouth and Warwick.

He is currently a chairman of the Royal Mail National Appeals Panel, which hears internal appeals brought by trade union officials who have been dismissed or disciplined.

Simon has acted and advised in sports-related cases for many years, including tribunal claims, arbitration proceedings, contractual and disciplinary issues.  He has acted for or against the Football Association and Welsh Football Association, Premiership rugby teams and Red Bull Racing and represented a range of individuals involved in professional sport.

He is a panel member of the International Paralympics Committee’s Anti-Doping Committee.

Representative Cases

• Flynn v. Football Association of Wales (2013): acting for the Welsh FA in Tribunal proceedings brought by the former U-21 manager, arising from the use of fixed-term contracts for managers;
• Representing a football agent in FA arbitration proceedings involving a dispute between a player, the agent and a Premiership club;
• Advising a Welsh regional rugby club on employment and contractual issues arising from the termination of players’ contracts.

Simon is judicially trained in costs assessment and has undertaken detailed assessments under Rule 78(1)(b) of the ET Rules.

He has experience of budget hearings, costs applications (including wasted costs) and detailed assessment in the High Court and county court.

He also has wide experience of costs in the employment tribunal (both as a practitioner and as a judge) and has recently acted for a group of 330 claimants in a multi-day costs/wasted costs hearing, which involved the largest applications for costs in the employment tribunal.

In 2017, Simon will be leading a series of seminars with colleagues from chambers on recent developments in costs.

Simon trained as a mediator at CEDR and has since acted in a range of mediations arising from workplace disputes.  His long experience as an employment judge is particularly valued in mediations, as he can provide a realistic assessment of how a tribunal would approach the dispute in question.

Recent Mediations

• Separate disputes involving an airline, where Simon has been retained by a leading firm of solicitors to act as mediator in high-value claims.
• A mediation involving a chief executive, where the successful outcome had to address complex pension and company law issues.
• Mediating successfully in an acrimonious dispute between members of a family who were co-directors and employees of a company.