Employment and discrimination
Karen is an employment law specialist with 18 years of experience. She has been most recently ranked as a Tier 1 Leading Junior in the South Eastern Circuit Employment ‘She is a superstar: a lawyer of the strongest calibre and an excellent advocate with strong cross-examination and client care skills’ and praised for being ‘personable with all clients’ and being able to ‘put witnesses at ease while keeping them focussed on their evidence‘. As a Leading Junior at the London Employment Bar, she is recognised as ‘Superb at processing complex matters and cutting through to the core legal and commercial issues in play, her technical knowledge is extensive and impressive’ (Legal 500 2021).
She has been recognised in this year’s Chambers and Partners UK 2021 as a “Widely acclaimed barrister with a tremendous depth of experience handling an array of employment matters including discrimination and whistle-blowing claims… "She's absolutely fantastic with clients and also just gets the legal issues instantly. She is my go-to barrister for everything because she can turn her hand to anything – she's absolutely incredible." "She routinely impresses me with opinions and her advocacy. She is very quick at cutting through the complex factual background to get to a clear legal view.”
Employment tribunal work has included both Claimant and Respondent work relating to unfair dismissal (substantive and procedural, constructive or actual), wrongful dismissal, discrimination (sex, sexual orientation, race, age, disability, religion and belief; direct and indirect), harassment, victimisation, stress at work claims, unlawful detriment claims, equal pay claims, TUPE, breach of contract, PIDA/whistleblowing claims, working time and unlawful deductions from wages. She has a particular interest in disability discrimination claims, including failure to make reasonable adjustments, and race and sex discrimination claims.
She is also regularly instructed to appear or to advise in matters of employment-related insolvency and judicial or other employment mediations. She has been instructed to draft a wide variety of employment pleadings and frequently advises parties pre- and post-action in industrial relations matters generally and tribunal and/or county court and/or High Court litigation, including post-termination restrictions and injunctive proceedings. She regularly appears in the Employment Appeal Tribunal and has appeared in the Court of Appeal on employment matters.
Karen undertakes work via Direct Access for lay clients, on Conditional Fee and Damages Based Agreements and on a pro bono basis in appropriate cases. Additionally she has represented parties in judicial and other mediations regarding employment and wider commercial disputes.
She gives lectures, seminars and produces training material on the development of employment law to solicitors, human resources and other professionals.
Reported and interesting appellate cases:
Ahmed v Cardinal Hume Academies UKEAT/0096/18 29th March 2019
Successfully defended an appeal regarding disability harassment and direct discrimination because of disability. Mr Justice Choudhury (P) found that the tribunal had been correct to find that if it was not reasonable for the conduct to be regarded as violating the Claimant’s dignity or creating an adverse environment for him, then it should not be found to have done so. Additionally, the tribunal had concluded that the Appellant had been suspended because of his difficulties with handwriting. That was a finding that treatment was because of the adverse effect of an impairment or of something arising from disability; it was not a finding that the treatment was because of the disability – whether dyspraxia or some other unspecified physical or mental impairment - itself.
Baldeh v Churches Housing Association of Dudley & District Ltd UKEAT/0290/18/JOJ 11th March 2019
HHJ Shanks determined that where the original decision to dismiss was for disability-related reasons, without knowledge of the disability, but the appeal decision, upholding the dismissal was for the same reasons, with the requisite knowledge of a disability, that was actionable by an employee claiming to have been dismissed because of something arising in consequence of her disability. The ET had failed to apply the correct thresholds for liability under s.15 Equality Act 2010 and so the matter was remitted to a fresh tribunal
Philcox v CGDM Ltd TA Andrew Wilson & Co A2/2016/2804
May 2017 Representing the successful Respondent in the Court of Appeal, Lord Justice Underhill set aside the permission to appeal granted last year by Lord Justice Elias in this factually complex case involving multiple allegations of sex discrimination and unfair dismissal (EAT in February 2017 EAT/0819/16/DA).
Hampshire County Council v Wyatt UKEAT/0013/16/DA
October 2016 Represented the successful Respondent before the President of the Employment Appeal Tribunal Mrs Justice Simler DBE who gave invaluable guidance in relation to the divisibility of injuries and proportionate reduction of ITF and personal injury awards and on the use of medical evidence in employment tribunals for personal injury claims.
Pnaiser v NHS England and Coventry City Council  IRLR 170
November 2015 Represented the successful Appellant in showing that a prospective employer could be liable for discrimination arising in consequence of a disability, by relying on a reference which itself was discriminatory, even if the prospective employer did not know of the link between negative reference and the disability. The decision of the Tribunal overturned and a decision upholding her claims for disability discrimination was substituted.
Scotthorne v Four Seasons Conservatories (UK) Limited UKEAT/0178/10/ZT
Whether the Tribunal was correct not to order disclosure of documented advice from “Employment Consultants” or HR professionals who were not legally qualified on the grounds of either legal advice privilege or litigation privilege and the application of New Victoria Hospital v Ryan  IRLR 202 and Three Rivers DC v Bank of England (No.6)  1 AC 610.
Snows Motor Group Ltd v Palmerino UKEAT/1512/08DM
Whether the Tribunal had “slipped into the substitution mindset” following the Court of Appeal decision in London Ambulance v Small and the applicability of the statutory disciplinary procedures where detailed evidence had not been provided until the Step 2 hearing.
Lloyd-Briden v Worthing College  3 CMLR 27, EAT
The applicability and effect of the ECJ decision in Mangold on the age discrimination provisions before the implementation date in the UK.
London Borough of Camden v Price-Job UKEAT/0507/06/DM  All ER (D) 259 (Dec)
Question of whether the Tribunal correctly considered all relevant circumstances of Respondent to a DDA claim, and whether they considered the effect of s.3A(6) appropriately. Additionally the application of the law in relation to whether an appropriate assessment of an employee is a necessary pre-condition to reasonable adjustments.
Roberts v Valleyrose Ltd T/A Fernbank Nursing Home UKEAT/03944/06/D  All ER (D) 163 (Aug)
Question of whether the Tribunal was biased against the Appellant and whether the Appellant had had a fair opportunity to refute an allegation of bad faith in a PIDA claim.
Karen Moss has extensive experience of advising investigators in a number of different sectors, including healthcare, the legal profession, including partnership disputes, communications, manufacturing and education.
The investigations with which she has been involved have ranged from straight-forward disciplinaries and grievances, to factually and legally complex, wide-ranging high-stakes cases involving C-suite executives, whistleblowing and discrimination allegations. She has particular expertise in cases involving disabilities or suspected disabilities, especially those involving mental health.
Her skills are in distilling voluminous information into the salient points, being efficient, incisive and comprehensive. Her down-to-earth, practical nature makes her easy to work with.
Karen Moss is frequently instructed on High Court applications for interim injunctions concerning an employee’s breach of express and implied terms during and after their employment, including breach of fiduciary duty and directors’ duties, breach of confidentiality, protection of Databases and Trade Secrets, enforcement of restrictive covenants and third party liability. Successful applications have included interim and final injunctions, springboard relief, orders for delivery up and destruction, and substantial damages.
She has advised claimants and defendants, including C-suite executives, on negotiating appropriate undertakings, enforceability and severability of covenants, team moves and the use of garden leave, in addition to providing practical tactical guidance both before and after a claim is issued.