Toby Kempster

Year of call 1980

CClerk

William Meade
020 7269 0360 Email William

Toby specialises in employment and personal injury law and the associated areas around these specialisms. He is recommended as a leading lawyer in these fields in both the Legal 500 and Chambers and Partners.

Toby’s personal injury practice principally involves employer’s liability claims both in respect of work related accidents and disease claims, especially those claims arising from asbestos exposure and industrial deafness.  Toby regularly works for trade unions and has also developed particular expertise in stress claims. In this respect, Toby’s experience in employment law enables him to advise on the alternative remedies open to claimant where discrimination or bullying and harassment is involved.

In addition to acting for claimants against their employers, Toby also has considerable experience in dealing with Fatal Accident Act claims and other serious injuries including both brain and spinal cord damage.

Toby’s employment practice comprises the full range of employment law, which is complemented by his experience in dealing with quantum issues in high value personal injury claims and stress claims. He appears regularly in multi day ET claims and EAT appeals and has developed a niche practice in disability discrimination cases due to his crossover experience.

In addition to these statutory claims, Toby also deals with PHI claims and contractual issues in both the County Court and the High Court and has been involved in a number of claims (including injunctive relief), arising from the enforceability of restrictive covenants.

Employment

  • Conceicao v London Borough of Camden: Successfully acted for respondent in resisting complaints of race, sex & disability discrimination in a recently concluded 6 day hearing.
  • Denteh v South Maudsley NHS Trust: EAT agreed that ET had correctly concluded that it has no jurisdiction to hear a race discrimination claim which had been withdrawn in earlier unfair dismissal proceedings.
  • C v London Borough: acting for claimant post dismissal from senior post with a London Borough who, having succeeded in her race discrimination and unfair dismissal claims, but also having suffered a nervous breakdown, is now seeking compensation in excess of £500,000.
  • PHI claims: Toby has advised in 2 recent PHI/contractual disputes for senior employees who have suffered from stress related illnesses and are no longer able to work.

Personal Injury

  • Tabberer v North Somerset NHS Trust: Successfully representing claimant in claim for damages in respect of a stress related illness arising out of an excessive work load.
  • Scarlett v Secretary of State for Energy: Representing family of deceased claiming damages in respect of deceased’s exposure to asbestos; complex issues of causation remain having overcome a limitation defence.
  • William v Davies: FAA claim recently settled at JSM for £500,000 +
  • Cooper v Quentor: WRULD claim successfully settled on behalf of claimant [2015].
  • Preux v Hot Liquid: Successfully settled claim against event organiser of offshore race where claimant suffered serious head injury when struck by boom [2014].

Toby is recognised in both Chambers and Partners and the Legal 500 as a leading employment lawyer.

Toby’s employment practice comprises the full range of employment law, which is complemented by his experience in dealing with quantum issues in high value personal injury claims and stress claims. He appears regularly in multi day ET claims and EAT appeals and has developed a niche practice in disability discrimination cases due to his crossover experience.

In addition to these statutory claims, Toby also deals with PHI claims and contractual issues in both the County Court and the High Court and has been involved in a number of claims arising from the enforceability of restrictive covenants.

Toby regularly acts for local authorities, NHS trusts, and national companies as well as on behalf of claimants and their representative bodies. He has particular expertise in disability related claims, a subject upon which he regularly speaks and provides seminars.

Reported and/or significant cases.

Discrimination

  • Denteh v South Maudsley NHS Trust [2014] ICR D21: EAT agreed that ET had correctly concluded that it has no jurisdiction to hear a race discrimination claim which had been withdrawn in earlier unfair dismissal proceedings.
  • South London & Maudsley NHS Trust v Dathi [2008] IRLR 350: EAT held that ET had no jurisdiction to hear claims of discrimination where the claims were founded upon letters between the parties’ legal advisors.
  • Smith v Brighton University [December 2013] Equality Law Reports: Disability discrimination claim concerning reasonable adjustments.
  • Conceicao v London Borough of Camden: Successfully acted for respondent in resisting complaints of race, sex & disability discrimination in a 6 day hearing.
  • Jervis v London Borough of Camden: Successfully acted for respondent in resisting complaints of sex discrimination on a 9 day hearing.

TUPE

  • Ferguson v Secretary of State for Justice [2013] ET: Issue as to whether prison staff were assigned to a prison medical unit when its operation was transferred to the NHS.
  • Johnstone v Bath University & Plymouth University [2012] UKEAT/0449/11: EAT dismissed appeal by university lecturers against ET finding that the activities pre and post the transfer of a course out of Bath University did not remain fundamentally or essentially the same.
  • Isle of Scilly v Brintel Helicopters [1995] ICR 249: Transfer within meaning of TUPE when baggage handling/fire-fighting, an identifiable undertaking, was contracted back in to the local council.

Contract

  • Shepherds Investment v Walters [2007] IRLR 110: Decision concerning the extent of employees’ duties of good faith and/or fidelity when setting up competing business.
  • Healey v Bridgend Borough Council [2004] ICR 561: Court of Appeal confirming that application for ill health retirement also amounted to a notice of termination of employee’s contract of employment.
  • Griffiths v Salisbury District Council [2004] EWCA Civ 162: Court of Appeal decision concerning the incorporation of a re-grading policy into employees’ contacts of employment.
  • Alexander v Standard Telephone Cables [1990] ICR 291: Decision on incorporation of redundancy policy into employees’ contracts of employment and the refusal of the court to grant an injunction restraining the employer from making employees redundant on grounds other than those set out in redundancy policy.

Toby is recognised in both Chambers & Partners and the Legal 500 directory as a leading personal injury lawyer.

Toby’s personal injury practice principally involves employer’s liability claims both in respect of work related accidents and disease claims, especially those claims arising from asbestos exposure and industrial deafness. Toby regularly works for trade unions and has also developed particular expertise in stress claims. In this respect, Toby’s experience in employment law enables him to advise on the alternative remedies open to a claimant where discrimination or bullying and harassment is involved.

In addition to work related claims, Toby also acts for claimant’s sustaining serious/significant injuries, and he has particular experience in dealing with claims under the Fatal Accidents Acts 1976 and other serious and complex injuries.

Reported and/or significant cases.

Employers Liability

  • Keen v Stephenson Maintenance Ltd: Mesothelioma claim on behalf of deceased whose exposure to asbestos resulted from washing her husband’s overalls. Defence of “de minimus” exposure and foreseeability.
  • Scarlett v Secretary of State for Energy: Family of deceased claiming damages in respect of deceased’s exposure to asbestos; complex issues of causation.
  • Tabberer v North Somerset NHS Trust: Claimant succeeded before HHJ Herrington [Bristol County Court 10.01.15] in her claim for damages in respect of a stress related illness arising out of an excessive work load.
  • Russell v Wincanton [2003] EWCA Civ 504: Court of Appeal rejecting defendant’s appeal as to causation of serious head injury sustained by claimant when unloading lorry in course of employment.

FAA

  • Keen v Stephenson Maintenance Ltd: Mesothelioma claim on behalf of deceased whose exposure to asbestos resulted from washing her husband’s overalls. Defence of “de minimus” exposure and foreseeability.
  • Scarlett v Secretary of State for Energy: Family of deceased claiming damages in respect of deceased’s exposure to asbestos; complex issues of causation.
  • Pounder v London Underground 1995 PIQR 217: “Dependency” issue in claim by girlfriend of deceased with whom he intermittently lived but where deceased also had a wife.
  • Johnson v British Midland Airways [1996] PIQR Q8: Claim arising out of plane crash and “loss of consortium” award where cost of housekeeper/nanny also claimed.

RTA

  • Dummett v Carr: Claimant suffered complex spinal injury as a result of RTA triggering underlying “Arnold-Chari malformation” rendering the claimant effectively housebound.
  • Durseley v Hill & Devaney: RTA in which 2 year old boy suffered head injury [now aged 16] with complex quantum as result of difficulty determining pre accident IQ and “but for” career path.

Toby’s considerable experience in personal injury work has resulted in him regularly advising in and pursuing claims arising out of the professional negligence of solicitors acting for claimants suffering injury but whose claims have for example either been struck out or undervalued.

  • Denteh & Others v. South London & Maudsley NHS Foundation Trust

    An employment tribunal had correctly concluded that it did not have jurisdiction to hear race discrimination claims which had previously been dismissed on the respondent's oral application following the claimants'...

  • South London & Maudsley NHS Trust v. Dathi

    An employment tribunal had no jurisdiction to hear claims of discrimination and victimisation where the claims were founded upon letters from a respondent's legal advisers to a claimant's advisers. The...

  • Shepherds Investments v. Walters

    The claimant companies (C1 and C2) claimed damages and an account of profits against their former directors (D1, D2 and D3) for various breaches of duty and contract, including the...

  • Griffiths v. Salisbury District Council

    An Implementation Agreement was apt for incorporation into the claimants' employment contracts since it made it clear that if there was a re-grading structure policy, and that if the trade...

  • Isles of Scilly v Brintel Helicopters

    Five St Mary's Airport baggage handlers and fire fighters who had been employed originally by the Council but whose employment contracts were taken over by a company, Brintel helicopters Ltd,...

  • Pounder v London Underground Ltd

    Claim under the Fatal Accidents Act 1976 by deceased's girl friend who had had two children by the deceased against deceased's employer where deceased's mother was also a claimant. On...

  • See all cases

     

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

Toby specialises in employment and personal injury law and the associated areas around these specialisms. He is recommended as a leading lawyer in these fields in both the Legal 500 and Chambers and Partners.

Toby’s personal injury practice principally involves employer’s liability claims both in respect of work related accidents and disease claims, especially those claims arising from asbestos exposure and industrial deafness.  Toby regularly works for trade unions and has also developed particular expertise in stress claims. In this respect, Toby’s experience in employment law enables him to advise on the alternative remedies open to claimant where discrimination or bullying and harassment is involved.

In addition to acting for claimants against their employers, Toby also has considerable experience in dealing with Fatal Accident Act claims and other serious injuries including both brain and spinal cord damage.

Toby’s employment practice comprises the full range of employment law, which is complemented by his experience in dealing with quantum issues in high value personal injury claims and stress claims. He appears regularly in multi day ET claims and EAT appeals and has developed a niche practice in disability discrimination cases due to his crossover experience.

In addition to these statutory claims, Toby also deals with PHI claims and contractual issues in both the County Court and the High Court and has been involved in a number of claims (including injunctive relief), arising from the enforceability of restrictive covenants.

Employment

  • Conceicao v London Borough of Camden: Successfully acted for respondent in resisting complaints of race, sex & disability discrimination in a recently concluded 6 day hearing.
  • Denteh v South Maudsley NHS Trust: EAT agreed that ET had correctly concluded that it has no jurisdiction to hear a race discrimination claim which had been withdrawn in earlier unfair dismissal proceedings.
  • C v London Borough: acting for claimant post dismissal from senior post with a London Borough who, having succeeded in her race discrimination and unfair dismissal claims, but also having suffered a nervous breakdown, is now seeking compensation in excess of £500,000.
  • PHI claims: Toby has advised in 2 recent PHI/contractual disputes for senior employees who have suffered from stress related illnesses and are no longer able to work.

Personal Injury

  • Tabberer v North Somerset NHS Trust: Successfully representing claimant in claim for damages in respect of a stress related illness arising out of an excessive work load.
  • Scarlett v Secretary of State for Energy: Representing family of deceased claiming damages in respect of deceased’s exposure to asbestos; complex issues of causation remain having overcome a limitation defence.
  • William v Davies: FAA claim recently settled at JSM for £500,000 +
  • Cooper v Quentor: WRULD claim successfully settled on behalf of claimant [2015].
  • Preux v Hot Liquid: Successfully settled claim against event organiser of offshore race where claimant suffered serious head injury when struck by boom [2014].

Toby is recognised in both Chambers and Partners and the Legal 500 as a leading employment lawyer.

Toby’s employment practice comprises the full range of employment law, which is complemented by his experience in dealing with quantum issues in high value personal injury claims and stress claims. He appears regularly in multi day ET claims and EAT appeals and has developed a niche practice in disability discrimination cases due to his crossover experience.

In addition to these statutory claims, Toby also deals with PHI claims and contractual issues in both the County Court and the High Court and has been involved in a number of claims arising from the enforceability of restrictive covenants.

Toby regularly acts for local authorities, NHS trusts, and national companies as well as on behalf of claimants and their representative bodies. He has particular expertise in disability related claims, a subject upon which he regularly speaks and provides seminars.

Reported and/or significant cases.

Discrimination

  • Denteh v South Maudsley NHS Trust [2014] ICR D21: EAT agreed that ET had correctly concluded that it has no jurisdiction to hear a race discrimination claim which had been withdrawn in earlier unfair dismissal proceedings.
  • South London & Maudsley NHS Trust v Dathi [2008] IRLR 350: EAT held that ET had no jurisdiction to hear claims of discrimination where the claims were founded upon letters between the parties’ legal advisors.
  • Smith v Brighton University [December 2013] Equality Law Reports: Disability discrimination claim concerning reasonable adjustments.
  • Conceicao v London Borough of Camden: Successfully acted for respondent in resisting complaints of race, sex & disability discrimination in a 6 day hearing.
  • Jervis v London Borough of Camden: Successfully acted for respondent in resisting complaints of sex discrimination on a 9 day hearing.

TUPE

  • Ferguson v Secretary of State for Justice [2013] ET: Issue as to whether prison staff were assigned to a prison medical unit when its operation was transferred to the NHS.
  • Johnstone v Bath University & Plymouth University [2012] UKEAT/0449/11: EAT dismissed appeal by university lecturers against ET finding that the activities pre and post the transfer of a course out of Bath University did not remain fundamentally or essentially the same.
  • Isle of Scilly v Brintel Helicopters [1995] ICR 249: Transfer within meaning of TUPE when baggage handling/fire-fighting, an identifiable undertaking, was contracted back in to the local council.

Contract

  • Shepherds Investment v Walters [2007] IRLR 110: Decision concerning the extent of employees’ duties of good faith and/or fidelity when setting up competing business.
  • Healey v Bridgend Borough Council [2004] ICR 561: Court of Appeal confirming that application for ill health retirement also amounted to a notice of termination of employee’s contract of employment.
  • Griffiths v Salisbury District Council [2004] EWCA Civ 162: Court of Appeal decision concerning the incorporation of a re-grading policy into employees’ contacts of employment.
  • Alexander v Standard Telephone Cables [1990] ICR 291: Decision on incorporation of redundancy policy into employees’ contracts of employment and the refusal of the court to grant an injunction restraining the employer from making employees redundant on grounds other than those set out in redundancy policy.

Toby is recognised in both Chambers & Partners and the Legal 500 directory as a leading personal injury lawyer.

Toby’s personal injury practice principally involves employer’s liability claims both in respect of work related accidents and disease claims, especially those claims arising from asbestos exposure and industrial deafness. Toby regularly works for trade unions and has also developed particular expertise in stress claims. In this respect, Toby’s experience in employment law enables him to advise on the alternative remedies open to a claimant where discrimination or bullying and harassment is involved.

In addition to work related claims, Toby also acts for claimant’s sustaining serious/significant injuries, and he has particular experience in dealing with claims under the Fatal Accidents Acts 1976 and other serious and complex injuries.

Reported and/or significant cases.

Employers Liability

  • Keen v Stephenson Maintenance Ltd: Mesothelioma claim on behalf of deceased whose exposure to asbestos resulted from washing her husband’s overalls. Defence of “de minimus” exposure and foreseeability.
  • Scarlett v Secretary of State for Energy: Family of deceased claiming damages in respect of deceased’s exposure to asbestos; complex issues of causation.
  • Tabberer v North Somerset NHS Trust: Claimant succeeded before HHJ Herrington [Bristol County Court 10.01.15] in her claim for damages in respect of a stress related illness arising out of an excessive work load.
  • Russell v Wincanton [2003] EWCA Civ 504: Court of Appeal rejecting defendant’s appeal as to causation of serious head injury sustained by claimant when unloading lorry in course of employment.

FAA

  • Keen v Stephenson Maintenance Ltd: Mesothelioma claim on behalf of deceased whose exposure to asbestos resulted from washing her husband’s overalls. Defence of “de minimus” exposure and foreseeability.
  • Scarlett v Secretary of State for Energy: Family of deceased claiming damages in respect of deceased’s exposure to asbestos; complex issues of causation.
  • Pounder v London Underground 1995 PIQR 217: “Dependency” issue in claim by girlfriend of deceased with whom he intermittently lived but where deceased also had a wife.
  • Johnson v British Midland Airways [1996] PIQR Q8: Claim arising out of plane crash and “loss of consortium” award where cost of housekeeper/nanny also claimed.

RTA

  • Dummett v Carr: Claimant suffered complex spinal injury as a result of RTA triggering underlying “Arnold-Chari malformation” rendering the claimant effectively housebound.
  • Durseley v Hill & Devaney: RTA in which 2 year old boy suffered head injury [now aged 16] with complex quantum as result of difficulty determining pre accident IQ and “but for” career path.

Toby’s considerable experience in personal injury work has resulted in him regularly advising in and pursuing claims arising out of the professional negligence of solicitors acting for claimants suffering injury but whose claims have for example either been struck out or undervalued.

  • Denteh & Others v. South London & Maudsley NHS Foundation Trust

    An employment tribunal had correctly concluded that it did not have jurisdiction to hear race discrimination claims which had previously been dismissed on the respondent's oral application following the claimants'...

  • South London & Maudsley NHS Trust v. Dathi

    An employment tribunal had no jurisdiction to hear claims of discrimination and victimisation where the claims were founded upon letters from a respondent's legal advisers to a claimant's advisers. The...

  • Shepherds Investments v. Walters

    The claimant companies (C1 and C2) claimed damages and an account of profits against their former directors (D1, D2 and D3) for various breaches of duty and contract, including the...

  • Griffiths v. Salisbury District Council

    An Implementation Agreement was apt for incorporation into the claimants' employment contracts since it made it clear that if there was a re-grading structure policy, and that if the trade...

  • Isles of Scilly v Brintel Helicopters

    Five St Mary's Airport baggage handlers and fire fighters who had been employed originally by the Council but whose employment contracts were taken over by a company, Brintel helicopters Ltd,...

  • Pounder v London Underground Ltd

    Claim under the Fatal Accidents Act 1976 by deceased's girl friend who had had two children by the deceased against deceased's employer where deceased's mother was also a claimant. On...

  • See all cases

     

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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