Andrew MacPhail

Year of Call: 2007
Email Address: andrew.macphail@3pb.co.uk
Telephone: 01865 797 700

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Employment and discrimination

 

Recent Employment Appeal Tribunal appearances:

National Minimum Wage (“sleep-in shifts”)
In March 2017, the EAT heard three conjoined appeals, a significant element of which were concerned with the applicability of the NMW to “sleep-in” shifts.  The resulting Judgment of the EAT provided welcome clarification of the relevant law and also important guidance for ETs.  In this matter Andrew represented Mr Roberts resisting the appeal of Focus Care (UKEAT/0143/16/DM).  The core appeal (which in fact to a contractual matter, and not NMW) was successfully resisted by Andrew.

Employee status and continuity of service
In April 2017 Andrew appeared in the EAT, resisting an appeal against the decision of the ET in favour of the Claimant.  At ET C had argued that his period of engagement with R was covered by an umbrella employment contract; in the alternative he contended that each and every assignment (of which there were 100s) was a contract of employment, and that he could rely on the continuity of service provisions of the ERA to demonstrate qualifying period.  The ET had upheld the latter argument and as such concluded that C was an employee with qualifying service.  At the EAT the ex-employer was represented by an eminent employment QC.  The EAT upheld the appeal.  The matter was remitted to the same ET.

Equal pay and constructive dismissal
In January 2017 Andrew appeared in the EAT on behalf of a senior female sales person, resisting an appeal by the employer against the decision of the ET upholding various claims including equal pay and constructive dismissal.  The judgment of the EAT is awaited.

ACAS EC
Science Warehouse Ltd v Mills [2016] 1 ICR 252 was heard at the EAT in October 2015, with Andrew acting for Ms Mills.  It concerned the ACAS pre-claim conciliation procedure.  Andrew successfully resisted the appeal.  The resulting EAT decision represents one of the first EAT authorities in this area.

Limitation
In May 2015 Andrew appeared in Ms Meade v Oxfordshire County Council UKEAT/0410/14 representing the Council.  The Council’s appeal against the Judgment of the ET was upheld and the EAT dismissed the Claimant’s claims.  Andrew was also successful in resisting the Claimant’s cross-appeal.

Duty to mitigate
In April 2015 Andrew successfully resisted an appeal by the employer in Window Machinery Sales Ltd v Mr Luckey UKEAT/0301/14.  The employer appealed against the Judgment of the ET awarding Mr Luckey loss of earnings up to point of expected retirement.  The principal ground of appeal was that the ET had erred in respect of the issue of the duty to mitigate (the ET had found that Mr Luckey had made no attempt to find another job).  The core appeal was dismissed.

TUPE
In February 2014 Andrew appeared in the EAT for North Somerset Council in Robert Sage Ltd t/a Prestige Nursing Care Ltd v Mrs SJ O'Connell and Others UKEAT/0336/13 & UKEAT/0337/13.  The matter was concerned with whether the ET had misapplied the law in determining (i) that the condition set out at r3(3)(a)(ii) of TUPE 2006 was satisfied and/or (ii) that a particular claimant was “assigned” to the relevant grouping for the purposes of r4(1) of TUPE 2006.  The EAT rejected the first ground of appeal.  The EAT upheld the second ground and substituted its view that the relevant claimant had not been “assigned”.

Recent Employment Tribunal appearances:

Re-engagement order obtained
C was dismissed, purportedly for redundancy.  C claimed unfair dismissal.  Shortly before the ET hearing, R conceded unfair dismissal.  Andrew represented C at the ET hearing.  Andrew pursued, and obtained, a re-engagement order.  R has refused to comply with the order.  The matter is consequently ongoing.

Successful defence against lengthy claim for constructive dismissal
C worked for a local town council.  C resigned relying on (as alleged breach of contract) numerous matters going back years.  The ET hearing stretched over seven days, in two sittings.  Andrew successfully defended the claim.

Successful discrimination claim against NHS Trust
Whilst employed C pursued a number of grievances about various matters.  R dismissed C purportedly on the basis of a breakdown of trust and confidence.  In the circumstances, R chose not to comply with its usual disciplinary procedures.  C brought claims for race discrimination and unfair dismissal.  Andrew represented C at a multi-day hearing on liability.  The ET upheld the claim for unfair dismissal, as well as the race discrimination claim relating to the manner of dismissal.  R has appealed to the EAT: the EAT hearing is listed for July 2017.

Successful defence against claims for EqA victimisation and ERA whistle-blowing
Whilst employed C pursued a number of grievances about various matters, including alleged discrimination.  In due course C resigned and subsequently pursued multiple claims for victimisation and whistle-blowing detriment, as well as unfair (constructive) dismissal.  Andrew represented R at a multi-day hearing on liability.  The ET dismissed the claims.

National Minimum Wage
Andrew has represented two different employees in unconnected claims, albeit both in pursuit of compensation for breach of NMW in respect of payment for “sleep-in” shifts.  Andrew succeeded in both.  In each case the respective employer has appealed to the EAT (one of which is set out above, and the other of which is pending).

Equal pay
Andrew has a particular interest in equal pay and has experience of the mass equal pay litigation in the local government sector arising from the "Single Status" agreement and related matters.

Judicial mediation
Andrew has represented parties at Judicial Mediation on a number of occasions.

Injunctions
Andrew has experience of advising on issues relating to restrictive covenants.

Conferences and seminars:

Andrew enjoys delivering training seminars.  He is happy to explore potential options upon enquiry.  Events to date include

  • A speech on “Mass Equal Pay Litigation” at an event for local authorities run by South East Employers.
  • A seminar on “TUPE” for a regional branch of the SLG group (“solicitors in local government”).
  • A seminar on “Unauthorised deductions and breach of contract” for the employment team of a firm of solicitors.
  • A seminar on “TUPE” for the employment team of a firm of solicitors.
  • A seminar on “Holiday Pay” for the employment team of a firm of solicitors.

Other experience:

Prior to joining 3PB Andrew gained invaluable experience working in the employment department of a major corporate firm.  He has also undertaken a period of secondment in the legal department of a local authority.

Before retraining as a barrister Andrew spent nine years in the corporate world.  This experience enables Andrew to appreciate employment disputes, and their context, on a very practical level.

Publications

  • 25th Sep 2017

    "National Minimum Wage: A better night’s sleep": an analysis by Andrew MacPhail, who achieved a successful outcome for the claimant in Focus Care Agency v Mr B Roberts, EAT.

    View Publication

Recommendations

'Esteemed for his experience in a diverse array of employment law disputes, ranging from whistle-blowing, discrimination and harassment, to equal pay, unfair dismissal and TUPE.

Strengths: "His experience at tribunal covers a wide range of employment law areas." "He is often instructed for complex multi-day discrimination and whistle-blowing hearings."'

Recent work: Acted for the respondent council in Ms Meade v Oxfordshire County Council, an appeal against the judgment of the Employment Tribunal. Ms Meade's claims for whistle-blowing detriment were dismissed at appeal.

Chambers UK 2017/Employment - Western (Bar) - Up and Coming.

'Has represented both claimants and respondents in matters concerning issues as diverse as whistle-blowing, unfair dismissal, TUPE, equal pay, unlawful deductions and breach of contract.

Strengths: "He's calm and reassuring, and has a confident approach. He always delivers and always gets good results." "He's sensible, gives the client confidence, and can boil down the information to its essential points."'

Chambers UK 2016/Employment - Western (Bar) - Up and Coming.

'Expertise: "He is a thorough and systematic barrister. You always know when Andrew is instructed that he will devote his full care and attention to the case." "He's quite technical but very effective as an advocate, and always invested in his work."'

Chambers UK 2015/Employment – Western Circuit - Band 2 Set

‘Practical and professional; clients love him.’

Legal 500 2017/Regional Bar - South Eastern Circuit, Employment – Leading juniors.

'A pure employment expert.'

Legal 500 2016/Regional Bar - South Eastern Circuit, Employment – Leading juniors.

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Academic qualifications

  • MA Hons, Classics, University of Edinburgh
  • Graduate Diploma in Law, College of Law
  • Bar Vocational Course, College of Law

Professional qualifications & appointments

  • Graduate Diploma in Law, College of Law
  • Bar Vocational Course, College of Law

Professional bodies

  • Employment Law Bar Association
  • Employment Law Association

Direct Access

Andrew MacPhail is qualified to accept instructions directly from members of the public and professional clients under the Direct Public Access scheme.

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