Sarah Clarke analyses Allen v Primark Stores Ltd  EAT 57, a case in which the EAT reminds us of the need to carefully consider the relevant provision, criterion or practice (PCP) when constructing the pool for comparison, making sure that the potential pool for comparison suitably tests the discrimination that is being alleged.
Sarah Clarke is an experienced advocate, specialising in Employment, Commercial and Personal Injury law.
Typical areas in which she receives instructions include:
- All forms of discrimination claims under the Equality Act 2010
- Unlawful deduction from wages
- Unfair dismissal
- Restraint of trade, including claims involving issues arising out confidentiality, non-solicit and non-compete clauses
- Bonus payments
- Breach of contract
- Interim injunctions
- Road traffic claims, including cases involving Low Velocity Impact issues and staged accidents
- Public liability claims
- Employers’ Liability claims
- Holiday claims
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Sarah is an employment law specialist. She appears for both claimants and respondents in the Employment Tribunal and the Employment Appeal Tribunal. She has experience of the following types of claims:
- Unfair and wrongful dismissal
- Sex discrimination
- Race discrimination
- Disability discrimination including failure to make reasonable adjustments claims, discrimination arising from disability and direct discrimination
- Sexual orientation discrimination
- Maternity discrimination
- 'Whistleblowing' claims
- Unlawful deduction from wages/ holiday pay claims
- Claims under the National Minimum Wage Regulations 2015
- Illegal contracts of employment
- Equal pay
- Chowdhury v Marsh Farm Future UKEAT/0205/DA. https://assets.publishing.service.gov.uk/media/5e9d7c8086650c031715996a/Mr_N_A_Chowdhury_v_Marsh_Farm_Futures_UKEAT_0205_19_DA.pdf
- Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Trust UKEAT/0081/16/JOJ. Sarah successfully appealed a decision that a dismissal was fair. It was argued that the decision was perverse as the judge failed to take into account relevant factors
- Anderson and ots v First Wessex UKEAT /0132/17/RN. Sarah acts for the Respondent in this matter. She succeeded at first instance, and the matter is currently listed for a preliminary hearing in the EAT. Over 100 claims were brought for detriment on the grounds of trade union membership
- Elliott v Plymouth Hospitals NHS Trust UKEATPA/0826/14/LA. Sarah appeared for the Appellant in relation to a claim for discrimination arising from disability
- Lynch v Stockley Academy UKEATPA/0097/17/BA. Sarah successfully represented the Respondent at first instance in a 10-day trial in a claim for unfair dismissal and whistleblowing. The matter is currently listed for a preliminary hearing in the EAT
- Fathers v Pets at Home Ltd UKEAT/0424/13/DM. An appeal under the Equality Act 2010, Sarah successfully argued that the tribunal had erred because they had not addressed the ‘deduced effects’ and ‘likelihood of recurrence’ provisions in determining whether or not the Claimant was disabled
- Acting for the Claimant in a claim against a well-known airline in respect of a claim that the overtime policy constitutes indirect sex discrimination and less favourable treatment on the ground of part-time worker status
- Sarah secured an extremely favourable settlement for the claimant (on day 1 of a 4-day trial) in a claim for unfair dismissal and disability discrimination against a premier league football club
- Sarah acted for the 2nd Respondent in the Remploy litigation. Claims were brought by over 1,000 employees arising out of the closure of several Remploy factories across the country as a result of a decision by the DWP to reduce funding
- Sarah successfully acted for the claimant in a 9-day trial against a major finance house in a claim for disability discrimination
- Successfully acted for the Respondent, an employment advice centre, in a 5-day unfair dismissal and discrimination on the grounds of sexual orientation claim (involving applications to the EAT)
- Acted for the Claimant, a midwife, in a 4-day trial in a claim for unfair dismissal arising out of allegations of gross negligence in respect of two births
- Acted for the Respondent in a 4-day trial in a claim for disability discrimination and unfair dismissal. The Claimant, a registered nurse in a care home for the elderly, was dismissed on the basis of gross negligence and putting residents at risk
- Acted for the Claimant in an application for a restricted reporting order in a claim against an Academy and the Principal regarding allegations of sexual harassment. Unusually it was the Respondent who sought the order, and this was successfully opposed by the Claimant. The matter was widely reported in the press.
Sarah also has substantial experience in relation to interim injunction applications in the High Court to enforce restrictive covenants. For more information on this area please see her Business and Commercial Profile.
Sarah has been appointed to the barrister panel of ELAAS (the Employment Lawyers Appeals Advice Scheme). ELAAS is a service offering pro bono employment law advice to appellant and respondents where there is a preliminary hearing in the EAT with no previous legal representation on record. She therefore has vast experience of rule 3(10) permission hearings.
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Sarah accepts instructions in all areas of personal injury work, including accidents at work, road traffic accidents, public liability disputes and holiday claims arising from The Package Travel, Package Holidays & Package Tours Regulations 1992. Sarah is regularly instructed in fast track and multi-track trials and interlocutory hearings, including costs and case management hearings.
Sarah has specific experience in the following areas:
- Road traffic accident claims, including Low Velocity Impacts and staged or induced accidents
- Credit hire- Sarah has dealt with all of the various issues that arise in such claims, including need, period, rate, the ‘Doorstep’ Regulations, late signing, offer of replacement car and so on
- Employers’ Liability
- Public Liability
- Animals Act claims
- Highways Claims.
- Acting for the defendant in a claim in which the claimant alleged that an injury had been caused in a road traffic collision, but the defence was that in fact the injury occurred in a betting shop and was thus a fraudulent claim.
- Acted for the defendant in a road traffic accident claim in which the defence was that the claimant was lying about having sustained any injury. Involved allegations of fundamental dishonesty and consideration of section 57 of the Criminal Justice and Courts Act 2015.
- Acted for the defendant in a road traffic accident claim in which there were five claimants, all of whom had allegedly been injured. There was evidence of a substantial number of previous claims and major inconsistencies in the medical records and expert reports which required detailed cross-examination.
- Acted for the Claimant in a multi-track case in which the Claimant sustained serious physical and psychological injuries as a result of being seriously assaulted by her husband
- Advising the Claimant in a high value matter in an occupier’s liability claim in which the claimant suffered a serious head injury leading to a permanent psychogenic tremor
- Acting for the child Claimant in an occupier’s liability claim brought against a well-known supermarket arising out of accident involving a non-secure shelving unit
- Acting for the Claimant in an employers’ liability claim brought against a well-known fast food restaurant arising from a fall at work
- Acting for the claimant in a 2-day multi-track trial in a claim against a Council for a slip and trip accident. Live evidence was heard from two Consultant Orthopaedic Surgeons
- Acting for the Claimant in a slip and trip claim brought against her local authority, as a result of which the claimant developed CRPS.
Sarah regularly advises on quantum issues as well as conducting trials dealing with complex quantum issues. She frequently is instructed to draft pleadings, including complex schedules of loss incorporating future care claims, future treatment, loss of earnings, loss of pensions and Smith v Manchester awards.
She has experience in the following areas:
- Orthopaedic injuries and associated treatments including spinal decompression, open reduction and internal fixation, prolapses, strains and so on
- Psychological trauma, including PTSD, depression and adjustment disorders
- Complex regional pain syndrome
- Damage caused to teeth, often necessitating future treatment.
She is willing to consider instructions funded by way of a conditional fee agreement in appropriate cases.
Sarah has recently lectured on retracting admissions of liability and important updates in respect of the CPR (including costs budgeting and the interplay between the new rules on proportionality and additional liabilities). She is more than happy to provide lectures on appropriate topics.
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Sarah’s commercial practice includes advising, drafting and representing clients in a range of general contractual and commercial matters. She represents clients in the County Court and High Court. As well as conducting trials Sarah has extensive experience representing clients in the following matters:
- Applications for relief from sanction
- Interim injunctions
- Strike out applications
- Summary judgment applications
- Applications for pre-action disclosure
- Costs and case management hearings
Whilst Sarah has a general commercial practice, she has specific experience in the following areas:
- Contractual disputes
- Credit hire contracts and subrogated claims on behalf of insurers (acting for claimants and defendants)
- Restrictive covenants
- Sale of goods and consumer credit (with a niche practice in package holiday regulations)
- Bonus payments
Sarah also has an extensive employment practice, giving her an invaluable insight and skill set when dealing with cases involving employer/employee disputes. In particular, Sarah has gained considerable experience in matters involving restraint of trade, and thus regularly advises on the enforceability of restrictive covenants and whether or not an interim injunction should be sought.
Typical recent and on-going cases include:
- Advising an accountancy partnership in relation to breach of contract and interim injunction proceedings against a former partner for breach of a non-solicitation clause.
- Acting for a hairdressing salon in relation to breach of non-compete and non-solicitation clauses.
- Advising a dental practice in relation to a breach of agreement claim regarding non-poaching of employees and repudiatory breach of contract. One of the issues was whether or not the covenants were too wide.
- Advising a company in a claim against a former director for breach of confidentiality, breach of fiduciary duties and losses flowing therefrom. Involved evaluation as to whether consideration was provided given that the covenants were entered into some time after employment commenced.
- Acting for the defendant former employee in a pre-action disclosure application, in which allegations of breaches of confidentiality, non-solicit and non-compete clauses were made. Involved allegations against the employee’s new company of procuring a breach of contract.
- Acting for a former employee of a high-end dating site in a matter involving alleged breach of confidentiality, raising issues of the public interest defence and whistleblowing.
- Acted for a community council in an interim injunction application involving allegations of breaches of the Equality Act.
- Acted for the claimant in a claim for sums due under a personal guarantee, involving issues of consideration, misrepresentation and non est factum.
- Acted for the defendant employee and his new employer in an interim injunction application in the High Court.
Sarah has recently lectured on restrictive covenants and the various remedies available and is more than happy to provide a lecture on an appropriate topic.
EAT considers the correct pool for comparison in indirect discrimination cases5th May 2022
ET finds that a dismissal on the grounds that a care worker refused to be vaccinated against Covid-19 was fair1st Feb 2022
Allette v Scarsdale Grange Nursing Home Ltd 1803699/2021
Sarah Clarke reviews Allette v Scarsdale Grange Nursing Home Ltd 1803699/2021, in which the ET held that the dismissal of a care worker following a refusal to get the Covid-19 vaccine was fair. However, the case highlights that employers should ensure, before disciplining any employee for refusing to get vaccinated, that they have carried out a full investigation as to the reason why they consider that the vaccination is necessary within their particular workplace and the reasons why an employee has refused the vaccine.
The tribunal were careful to make it clear that they were not setting a precedent that dismissal for a refusal to have the vaccine would always be fair, as all the circumstances surrounding the case had to be taken into account, including the public health situation of the day and the respondent's business insurance requirements.
EAT on just and equitable time limits1st Feb 2022
Secretary of State for Justice v Johnson  EAT 1
Sarah Clarke analyses Secretary of State for Justice v Johnson  EAT 1, in which the EAT makes it clear that when considering whether or not it would be ‘just and equitable’ to extend time limits, it is not only the period of delay prior to the issuing of the claim that is relevant.
CoA opens the door for the development of an implied term that employers should act fairly when conducting disciplinary proceedings10th Jan 2022
Sarah Clarke analyses Burn v Alder Hey Children’s NHS Foundation Trust  EWCA Civ 1971, in which the Court of Appeal's obiter comments could make the concept of fairness in disciplinary procedures an implied term, reducing employees' burden to show breaches of trust and confidence.
Maintaining an individual’s salary indefinitely for a role which attracts a lower rate of pay is not a reasonable adjustment3rd Sep 2021
Sarah Clarke reviews Aleem v E-Act Academy Trust Ltd UKEAT/0100/20/RN, a case which reminds us that the purpose of the duty to make reasonable adjustments is to assist an employee remaining in employment or returning to work after a period of absence. If an employer does decide to maintain a salary whilst investigating the way forward, it is imperative that it is made clear to the individual that this is only a temporary measure.
Is the prohibition of employees wearing anything that manifests a religious belief in the workplace discrimination? Not necessarily, say the CJEU in IX v WABE & MH Muller v MJ10th Aug 2021
IX v WABE and MH Muller v MJ
Sarah Clarke reviews IX v WABE and MH Muller v MJ, in which the CJEU ruled that a blanket ban on all forms of outward manifestations of religion did not constitute direct discrimination as all religions were being treated in exactly the same manner - but reached a more controversial conclusion in relation to the issue of indirect discrimination.
When trust and confidence have broken down: CoA on the correct test to apply in re-engagement orders30th Apr 2021
The Court of Appeal clarifies the correct test to apply when a tribunal is considering whether or not to make an order for re-engagement when the employer argues that the trust and confidence has broken down.
Specialist employment law barrister Sarah Clarke analyses Kelly v PGA European Tour  EWCA Civ 559.
The EAT finds that workers are not entitled to carry over unpaid annual leave that was actually taken in Smith v Pimlico Plumbers Ltd UKEAT/0211/19/DA8th Apr 2021
Smith v Pimlico Plumbers Ltd UKEAT/0211/19/DA
Specialist employment barrister Sarah Clarke analyses the EAT's decision in Smith v Pimlico Plumbers Ltd UKEAT/0211/19/DA , in which Mr Justice Choudhury considers whether a worker is entitled to a payment in lieu of annual leave upon termination, whether such leave was taken or not, in circumstances where the respondent did not provide any paid annual leave during the relationship.
Is there a different burden of proof in relation to misconduct cases in which there is a possibility that an employee who works with children may pose a danger?7th Oct 2020
Is there a different burden of proof in relation to misconduct cases in which there is a possibility that an employee who works with children may pose a danger?
Sarah Clarke analyses K v L UKEAT/0014/18/JW.
Is an employee who works shifts at two franchises who trade under the same name employed by both?8th Sep 2020
Is an employee who works shifts at two franchises who trade under the same name employed by both?
Sarah Clarke analyses Aftala Norfolk Ltd T/A Papa John’s Pizza et al v Read, in which we are reminded that when it comes to the question as to who the correct employer is, the employment relationship needs to be critically analysed.
Is it an error of law to consider the requirements of s6 EQA in a sequential order? No, says the EAT in Khorochilova v Euro Rep Ltd UKEAT/0266/19/DA3rd Aug 2020
Employment law barrister, Sarah Clarke analyses the case of Khorochilova v Euro Rep Ltd UKEAT/0266/19/DA.
The ECJ gives a preliminary ruling on the issue of worker status in the case of B v Yodel Delivery Network Ltd- case C-692/194th May 2020
The ECJ gives a preliminary ruling on the issue of worker status in the case of B v Yodel Delivery Network Ltd- case C-692/19
The tribunal referred the following questions for a preliminary ruling:
Does Directive [2003/88] [which was transposed into UK national law by the WTR] preclude provisions of national law which require an individual to undertake to do or perform all of the work or services required of him, “personally” in order to fall within the scope of the Directive?
Can a tribunal depart from an agreed List of Issues at a final hearing?2nd Apr 2020
Can a tribunal depart from an agreed List of Issues at a final hearing? Yes, in certain circumstances, says the Court of Appeal in Mervyn v BW Controls Ltd  EWCA Civ 393.
Which employees can I furlough and how does the furloughing process work?30th Mar 2020
Which employees can I furlough and how does the furloughing process work? An analysis by Sarah Clarke for Business West
Can a one-off decision amount to a PCP?3rd Mar 2020
Can a one-off decision amount to a PCP? Generally not, unless it can be shown that the decision, act or omission relied upon would be the same in a similar situation, says the Court of Appeal in Ishola v Transport for London  EWCA Civ 112
Has the test for whether or not an appeal should be allowed in respect of a case management decision, as laid down in O’Cathail v Transport for London, been impliedly overruled by R (Osborn) v Parole Board? No, says the EAT in Chowdhury v Marsh Farm Futures UKEAT/0473/18/DA7th Feb 2020
Sarah Clarke analyses Chowdhury v Marsh Farm Futures, following her successful appearance in the EAT.
When are Article 8 rights engaged in the context of an unfair dismissal claim and how should the engagement of such rights be approached by the tribunal?7th Feb 2020
When are Article 8 rights engaged in the context of an unfair dismissal claim and how should the engagement of such rights be approached by the tribunal? Sarah Clarke analyses Q v Secretary of State for Justice UKEAT/0120/19/JOJ.
Time limits and the correct approach to the reasonable practicability of lodging ET claims when the previous fees regime was in place16th May 2019
3PB barristers Craig Ludlow and Sarah Clarke analyse the latest employment law cases, covering March, April and May 2019:
•Time limits and the correct approach to the reasonable practicability of lodging ET claims when the previous fees regime was in place - Mr G Wray v Jewish Care (UKEAT/0193/18/JOJ)
•s.26 Harassment: The correct approach - Mr F Ahmed v The Cardinal Hume Academies (UKEAT/0196/18/RN)
•Criminal & Employer Investigations, Interim Injunctions & Mutual Trust and Confidence - North West Anglia NHS Foundation Trust v Andrew Gregg  EWCA Civ 387
•S.15 Disability Discrimination based on mistaken belief - IForce Ltd v E Wood (UKEAT/0167/18/DA)
•Discrimination arising from disability/knowledge of dismissing officer and appeal officer - Baldeh v Churches Housing Association of Dudley & District Limited UKEAT/0290/18/JOJ
•Employee Suspension: Necessity or Reasonable and Proper cause? - The Mayor & Burgesses of the London Borough of Lambeth v Agoreyo  EWCA Civ 322
•Compensatory rest break need not be an uninterrupted 20-minute period, even if such a break was in fact possible to provide - Network Rail Infrastructure Ltd v Crawford  EWCA Civ 269
•TUPE transfer/sole or principal reason for dismissal/proximity of transfer - Hare Wines Ltd v Kaur  EWCA Civ 216
3PB Employment Case Law Update – July 201819th Jul 2018
3PB barrister Sarah Clarke analyses the latest employment law cases, covering:
• What constitutes ‘information’ in the context of making a protected disclosure? Kilraine v London Borough of Wandsworth  EWCA Civ 1436
• When determining the amount of one’s holiday pay, should regular voluntary overtime be included? In the context of the NHS, should non-guaranteed and voluntary overtime be included? Yes to both, says the EAT: Flowers v East of England Ambulance Trust UKEAT/0235/17/JOJ
• Can a dismissal for a first offence of serious (not gross) misconduct ever be fair? Yes, says the EAT: Quintiles Commercial UK Ltd v Barongo UKEAT/0255/17/JOJ
• Supreme Court has upheld previous decisions that an ostensibly ‘self-employed’ plumber was in fact a ‘worker’: Pimlico Plumbers Ltd v Smith  UKSC 29
3PB Employment Breakfast Briefing Notes - November 201710th Nov 2017
3PB Employment barristers Sarah Clarke and Simon Tibbitts analyse the latest employment law cases, covering:
1. Guidance of whose motivation will be taken into account in determining the “Employer’s” reason for dismissal: Royal Mail Limited v Kamaljeet Jhuti  EWCA Civ 1632
2. EAT find that relying on previous instances of misconduct, for which no sanction had been applied, does not render a dismissal unfair: NHS 24 v Pillar UKEATS/0005/16/JW
3. Subjecting men and women to the same detriment can be ‘less favourable treatment’: HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah school  EWCA Civ 1426
4. The Advocate General has ruled that employees may qualify for protection from pregnancy discrimination before informing employer about their pregnancy: Guisado v Bankia SA (Case C-102/16)
Please click below to read the case law update.
Employment case law update - June 201720th Jun 2017
3PB Employment barrister Sarah Clarke provides a case law update covering the past month. Sarah's update includes: Dismissal connected to absence because of cancer treatment was not discrimination arising from disability: Charlesworth v Dransfields Engineering Services Ltd; If an employee working night shifts is required to 'sleep in' at the premises, are they entitled to NMW for this time? It depends, says the EAT in 3 conjoined appeals: Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM; Frudd v The Partington Group Ltd UKEAT/0244/16/DM; and Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16/DM; Where an employee works in more than one EU state, the employment contracts fall within the jurisdiction of the country where, or from which, the employee principally carries out their obligations: Nogueira and others v Crewlink Ltd C-168/16; Moreno Osacar v Ryanair, formerly Ryanair Ltd C-169/16.
Sarah Clarke is experienced in a range of employment matters including discrimination claims, whistle-blowing, unfair dismissal and TUPE work. She also has experience acting in cases involving restrictive covenants and bonus payments, and acts for both claimants and respondents.
Strengths: "She seems to be getting cases beyond her call. She is never one to be intimidated and will happily go toe to toe with barristers much more senior than her. Clients really like her no-nonsense approach."
Recent work: Successfully represented the respondent in a four-day trial involving allegations of detriment on the ground that the claimant had made protected disclosures in respect of alleged unsafe dust levels at a Crossrail site.
Chambers UK 2022/Employment/Western
Strengths: "She is very brave and fierce in terms of her cross-examination. She is good at picking apart situations and getting results."
Recent work: Successfully advocated for the claimant in Kirby v Key Office Solutions, a claim for direct discrimination, failure to make reasonable adjustments and discrimination arising from disability.
Chambers UK 2021/Employment/Western
Her crossover into commercial and personal injury matters lends itself well to her work in employment mandates.
"A brilliant cross-examiner who is able to present her case in an exceptionally convincing manner." "It's one thing to prepare and turn up with a script, but what really impresses me is her ability to handle situations when things go wrong and the witness bowls a googly: she makes it look like it was planned all along while subtly adjusting her approach."
Chambers UK 2020/Employment/Western
‘A highly skilled advocate with a sharp mind. She is brilliant with clients.'
Legal 500 2022/Employment/Leading Juniors/Western Circuit
‘Fearless and great at cutting through the irrelevant and focusing her cross-examination on the core issues.’
Legal 500 2021/Employment/Leading juniors
Strengths: "She is a very effective advocate who can put her case strongly and convincingly."
Recent work: Instructed by the respondent in the five-day hearing of a claim for unfair dismissal relating to a protected disclosure.
Chambers UK 2020/Employment/Western
‘A fierce opponent who fights her clients’ corner to the bitter end.’
Legal 500 2020/Employment/Leading juniors
"I have recently instructed Sarah Clarke in a restraint of trade matter for a client who had issues with a departing partner soliciting clients of the partnership, I was very impressed with Sarah’s extensive knowledge in this complex area and her ability to explain these matters and offer solutions for our client to protect their business. Sarah is personable and is able to build a good rapport and trust with clients quickly and I cannot recommend her highly enough."
Instructing solicitor, July 2017
"Thank you for all your hard work and effort. You were brilliant and I can never thank you enough for all your support"
"Thank you so much for fighting so hard and well on my behalf. You honestly came out of the gate fighting and gave them no inch to move (as my mother put it "a lioness") when we were at the tribunal and for that I can't thank you enough."
"Thank you so much for all your help and advice on the case. You achieved a fantastic result for the client. We couldn’t have done it without you"
"Just a quick thank you for all your work in pushing a settlement through today- it means a lot to us, and we appreciate that you will have done this with a stack of other work needing to be done too. We are extremely grateful both for your work today and all you have done before"
"Sarah delivers an excellent service and knows her stuff. She is approachable, experienced and convincing."
"We have instructed Sarah for many years and we have always found her to be excellent. Sarah is knowledgeable and provides thorough and well-reasoned advice. Sarah is very approachable and is very good with clients. Sarah is an excellent advocate who presents her cases with determination and authority and she always gives 100%."
Chambers and Partners rankings
- Leading Junior 2022
Legal 500 rankings
- Leading Junior 2022
- BA (Oxon) 2:1 Jurisprudence
- BVC Nottingham Law School
- Inner Temple Exhibition 2004
- Sally Ball Award 2004
- Employment Law Bar Association (ELBA)
Sarah Clarke is qualified to accept instructions directly from members of the public and professional clients under the Direct Public Access scheme.More Information