Employment and discrimination
Andrew is regularly instructed to represent both claimants and respondents at employment tribunal hearings. He is often instructed for multi-day hearings addressing matters such as discrimination and whistle-blowing.
Andrew is also often instructed for Employment Appeal Tribunal matters.
His experience at tribunal covers a wide range of employment law areas including whistle-blowing, discrimination (including sex, race, disability, pregnancy and age), harassment, victimisation, equal pay, unfair dismissal, TUPE, unlawful deductions and breach of contract. Andrew is also regularly instructed to advise on prospects and to draft pleadings.
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 related 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 matter is ongoing.
Science Warehouse Ltd v Mills  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.
Andrew also appeared at the EAT in De Mota v ADR Network & The Co-operative Group UKEAT/0305/16/DA in which the EAT concluded in essence that it is not necessary for a claimant, who wishes to pursue two different employers, to complete two different ACAS EC Forms.
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.
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 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 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 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).
Andrew has recently successfully demonstrated unfair dismissal in two separate alleged gross misconduct claims, one pertaining to a teacher, and the other brought against a national telco company.
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.
Andrew has represented parties at Judicial Mediation on a number of occasions.
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.
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.
7th Jun 2019
Equal pay – Constructive dismissal: Andrew MacPhail analyses BMC Software Limited v Ms A Shaikh  EWCA Civ 267
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.
Andrew MacPhail has long been recommended as an Employment & Discrimination specialist by the Legal 500 UK Bar Directory, praising him as:
"Very good with clients." - Legal 500, 2020 / Employment - South Eastern Circuit - Tier 1 barrister
"Very good with clients." - Legal 500, 2020 / Employment - Western Circuit - Tier 1 barrister
"Andrew is a very user-friendly barrister" - Legal 500, 2018/19 / Employment - Tier 1 barrister
"Practical and professional; clients love him" - Legal 500, 2017 / Employment – Tier 1 barrister
"A pure employment expert" - Legal 500, 2016 / Employment - Tier 1 barrister
He has also been rated Band 4 for Employment Western (Bar) in Chambers & Partners 2020 UK Bar Directory.
The scope of his employment practice often focuses on complex multi-day discrimination and whistle-blowing hearings. He also has experience of TUPE and breach of contract work.
Strengths: "He is extremely detailed, and really analyses a case down to the finest details."
In Chambers & Partners 2017 UK Bar Directory. Andrew is rated 'Up and Coming barrister' and described as: "Andrew is 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 ". His strengths were detailed as : "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."
In Chambers & Partners UK Bar Directory 2016, Andrew was again rated as an Up and Coming barrister for Employment and described as counsel who "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. His strengths were described by clients as "He's m 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."
In Chambers & Partners K Bar Directory 2015, Andrew was again rated as a top employment barrister and was described by clients as : "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."
- 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
- Employment Law Bar Association
- Employment Law Association
Andrew MacPhail is qualified to accept instructions directly from members of the public and professional clients under the Direct Public Access scheme.More Information
3PB Employment barrister Andrew MacPhail acts in BMC Software Limited v Ms A Shaikh  EWCA Civ 267 in the Court of Appeal
3PB employment barrister Andrew MacPhail appeared in the Court of Appeal recently, representing Ms Shaikh at all stages including at the Court of Appeal, instru...Read more
"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
3PB Employment barrister Andrew MacPhail examines the decision taken by Justice Simler in Focus Care Agency & Ors v Mr B Roberts & Ors UKEAT/0143/16/DM ...Read more
3PB Barristers Employment team delivers Mock ET and Employment Law training to more than 200 ACAS delegates
On 8 June, 3PB Employment barrister Sarah Bowen delivered an Employment Law Update at the ACAS South West conference in Bristol. Over 100 delegates attended. To...Read more