Mark Green on the case of Habib v Dave Whelan Sports Ltd t/a DW Fitness First  EAT 113 and the EAT's important reminder to all involved in trials with vulnerable or disabled claimants, that proper attention to the ETBB and the Presidential Guidance on vulnerable witnesses will help reach robust judicial decisions and avoid future appeals.
- Clerk Name: Russell Porter
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Employment and discrimination
Mark Green has over 16 years’ experience as an employment law specialist. His busy practice has covered a wide range of cases, representing both Claimant and Respondent, at the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal in addition to the High Court and County Court. He is consistently ranked in the Legal 500 and Chambers and Partners with clients praising him as a ‘skilled and highly competent barrister’, noting his ‘huge intellect’, ‘excellent tactical mind’ and 'quiet and unassuming confidence' that makes lay clients ‘feel at ease as soon as they meet him’ in addition to his 'excellent, pragmatic advice’.
He is also regularly instructed to draft pleadings, advise on prospects and witness statements and deal with mediation proceedings.
Mark also has a media presence, following the high profile age discrimination case of Jolly v Royal Berkshire NHS Foundation Trust 3324869/2017, and several appearances on television, radio and in national newspapers, including discussing the case on the This Morning sofa. Click here to watch the interview.
In the EAT, issues have covered the definition of disability, limitation, protected disclosures, unlawful deductions from wages, medical evidence, pecuniary loss arising from discrimination, costs awards, satisfactory reasoning, victimisation and whole career loss of earnings.
Mark also advises on and acts in restrictive covenant matters and directors’ disqualification hearings, in addition to conducting internal appeals from disciplinary procedures.
He has appeared for a number of Italian clients, and is happy to deal with documentation and conduct conferences in both French and Italian.
As a member of the Attorney General’s panel of barristers, Mark appears frequently for numerous Government departments on both standard employment matters and those with an element of national security, an area in which has developed a niche practice, and has written on. He is also appointed to the barrister panel of ELAAS (the Employment Lawyers Appeals Advice Scheme), providing pro bono advice and representation for EAT hearings.
Mark has also been invited to provide training on discrimination law on behalf of the Employment Lawyers’ Association, along with Kiran Daurka of Leigh Day for a number of years.
Out of tribunal, Mark has developed a reputation as an advocate with an excellent 'bedside manner', taking the time to listen to his clients carefully and explain matters clearly and concisely.
Recent tribunal issues have included:
- Disability, age, sex, sexual orientation, race and religious discrimination
- Discrimination on the basis of marital status and pregnancy
- Restructuring processes wrongly called redundancy situations
- Constructive unfair dismissal
- Employee status of former company directors
- Public interest disclosures relating to health and safety
- Gross misconduct
- Capability procedures, particularly with regard to long term sickness
- Breach of contract
- Waiver of privilege in Employment Tribunal proceedings
- Final salary pension loss
- Post termination discrimination
- The interrelationship between parallel criminal and employment proceedings
Selected reported cases:
Cox v Adecco and ors  ICR 1307, EAT: This appeal is regularly cited as providing useful guidelines for the strike out of claims, particularly with regard to litigants in person. It highlighted the need to analyse the issues carefully before making any decision on strike out.
Bath Hill Court (Bournemouth) Management Company Ltd v Coletta  EWCA Civ 1707: This long-running case involved three appeals to the EAT which Mark dealt with as sole counsel, and a fourth to the Court of Appeal, in which he was led by Tim Brennan QC. The Court of Appeal confirmed that there is no backstop on claims for unlawful deductions from wages in the Employment Tribunal. The six year limitation period under the Limitation Act 1980 did not apply to such claims. This meant that because Mr Coletta had entered his claim before July 2015, when the statutory backstop of two years was introduced under the 2014 Deductions from Wages (Limitation) Regulations, he could claim 15 years of arrears for a failure to pay the full national minimum wage.
Omar Kalif v Evolve Hospitality Limited UKEAT/0313/19/LA: The Claimant appealed on the basis that the ET had failed to consider the full extent of a PCP (regarding the handling of pork) in a claim for indirect religious discrimination. Mark, for the Respondent, successfully argued that even if there had been an error of law (which the EAT agreed was not made out), the outcome would not have been any different, as there was no requirement for him, as a matter of fact, to handle pork products. Jafri v Lincoln College  IRLR 544 applied.
Humankind Charity (formerly Blenheim CDP) v Gittens UKEAT/0086/18/BA: Mark Green successfully represented the Appellant, Humankind Charity. Ms Gittens was dismissed for misconduct, following an allegation of dishonesty. The Employment Tribunal found that the Respondent had fairly dismissed her but went on to find that she had been wrongfully dismissed, as she had no duty to disclose her own misconduct and therefore had not fundamentally breached her own contract. The Tribunal agreed with Mark that the case of Ranson –v- Customer Systems Plc  EWCA 841 had been misapplied.
Mark appeared in two EAT cases which were assessed to have little reasonable prospect of success and so were filtered to a 3(10) preliminary hearing. In both cases, he persuaded the President of the EAT to allow the matters through to final hearings, and went on to succeed in both:
In Brighton v Tesco UKEAT/0165/15/DM, the Respondent had dismissed the Claimant because of aggression he alleged was due to an epileptic fit. The Respondent did not believe him. Mark argued successfully that it was both perverse and non-Meek compliant for Tesco to disregard the medical evidence in the way it did, even if it was because it did not find the Claimant a credible historian. The EAT found that whilst Tribunals are not bound by medical evidence, they should give proper respect to it and provide sufficient reasons for disregarding it.
In Ndebele v Kasterlee UKEAT/0307/15/DM, the Senior President of Tribunals accepted Mark’s argument that the Tribunal was wrong to hold that the Claimant could not claim loss of earnings because she had not put herself forward for work (on a zero hours contract). The Tribunal should have looked further at the reason why she had not put herself forward. In her case, the reason was because of disability discrimination she had already suffered.
In Anwar v Tower Hamlets UKEAT/0091/10, an appeal under the DDA 1995, Mark successfully argued that when considering whether or not an impairment was likely to last 12 months and therefore be 'long term', the Tribunal must have regard to the likely effect of treatment on that impairment. The Tribunal went on to name several factors that should be taken into account, confirming the law in this area for the first time.
Dyslexia and the importance of assessing the effect of disability on giving evidence4th Sep 2023
What happens when vexatious litigants try to bring claims?1st May 2023
Mark Green reviews the various ways in which vexatious litigants can be prevented from bringing claims, prompted by the Court of Appeal case of Williamson v The Bishop of London and others  EWCA Civ 379, which confirms the strict rules around Civil Proceedings Orders.
Recruitment, agency workers and statutory interpretation28th Feb 2022
Mark Green analyses Kocur v Angard Staffing Solutions Ltd & anr :  EWCA Civ 189, a case in which the Court of Appeal gave general guidance on statutory interpretation and examined whether agency workers and employees have the same rights regarding recruitment.
Claimants working outside the UK – EAT confirms the correct test29th Jan 2021
Crew Employment Services Camelot v Mr W Gould  UKEAT/0330/19/VP
Employment law specialist Mark Green reviews the case of Crew Employment Services Camelot v Mr W Gould  UKEAT/0330/19/VP.
The Employment Appeal Tribunal has confirmed the approach where there is a question about the ET’s jurisdiction due to the location where the Claimant works, in circumstances where work is undertaken in more than one country
Wrongful dismissal – how not to go wrong2nd Jun 2020
Wrongful dismissal – how not to go wrong - Cameron v East Coast Mainline
Perceived disability discrimination and future disabilities1st Jul 2019
Perceived disability discrimination and future disabilities: Mark Green analyses The Chief Constable of Norfolk v Lisa Coffey  EWCA Civ 1061.
Mark Green is experienced in handling claims of harassment and discrimination. He represents clients in the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal. He acts for employers including private companies and charities, and for employees.
Strengths: “Mark Green is fun to work with. He is reliable and down to earth.”
“Mark is very expert in this area. I've been impressed by his court work and he's very easy to deal with. He is certainly one of my barristers of choice for High Court employment disputes.”
Chambers UK 2024/Employment/South Eastern Bar/Ranked Band 1
Strengths: “He's really clever and knows his way around the law really well. He's a very thoughtful advocate and engages very well with clients.”
“Mark Green is an approachable and confident advocate. He is thorough and well prepared in his advice.”
Chambers UK 2023/Employment/South Eastern Bar
Strengths: "I have had a very positive experience working with Mark. He is quick to get on top of issues and is a good communicator. He is an excellent advocate and a well-organised barrister."
Recent work: Acted in James v Lancaster Motor Company Ltd, representing the respondent against claims of race discrimination.
Chambers UK 2022/Employment/South Eastern Bar
'A user-friendly junior, who is very knowledgeable and a compelling advocate.'
Legal 500 2024/Employment/Leading Juniors/London Bar
‘Mark is very knowledgeable and a strong and resourceful advocate.’
Legal 500 2024/Employment/Leading Juniors/South Eastern Circuit
‘He is very knowledgeable in employment matters in general, and the intricacies of national security law in particular. He is also very calm and measured in his advocacy.'
Legal 500 2024/Employment/Leading Juniors/Western Circuit
'He is astute, balanced, and has sound judgement. A junior with an excellent tactical mind and great client empathy.'
Legal 500 2023/Employment/Leading Juniors/Western Circuit
‘Highly knowledgeable, incisive and a very effective barrister.’
Legal 500 2023/Employment/Leading Juniors/South Eastern Circuit
‘A very able, stealthy barrister with a huge intellect, and astute in his analysis of the law and facts. He takes points and develops them well with his capable demeanor in court or tribunal.’
Legal 500 2023/Employment/Leading Juniors/London Bar
‘An astute, persuasive and resilient advocate.’
Legal 500 2022/Employment/Leading Juniors/South Eastern Circuit
‘Methodical, calm and clear with emotional clients. He has a great style which puts the client at ease while explaining the challenges in their case.’
Legal 500 2022/Employment/Leading Juniors/London Bar
‘He is a skilled and highly competent barrister.’
Legal 500 2021/Employment/South Eastern Circuit
‘Always provides excellent, pragmatic advice, and has the right balance between professional and approachable. He also tailors his advocacy appropriately, particularly when a litigant in person is involved.’
Legal 500 2021/Employment/London Bar
‘Mark Green’s 'quiet and unassuming confidence' makes one solicitors’ lay clients ‘feel at ease as soon as they meet him’
Legal 500 2021
Solicitor client testimonials:
‘Mark is an excellent barrister who I have no hesitation in recommending. His technical ability is superb and the content of his written opinions is always spot on. My clients have all praised Mark's ability in the Tribunal and he is always able to build a quick rapport with them’
‘Mark has provided some excellent advice to some of my clients, all of whom have sung his praises. He’s a great advocate, works hard and is very responsive, which helps enormously with Tribunal litigation.’
Lay client testimonials:
‘A personal note of thanks…you had just the right personality to help her stay calm and it was like theatre watching you in the courtroom’
‘How could I doubt a flawless performance like that! Thank you very much for all your hard work yesterday. Your patience and negotiating skill was admirable….I am delighted and pleased that we were left in your capable hands.’
‘Mr Green did outstanding work not only in winning the case but in his whole manner with us and our daughter…We owe Mr Green a sincere debt of thanks and would recommend him unreservedly to anyone seeking the services of a Barrister’