Recent Cases on the Braganza duty and the exercise of discretion: an intensification of scrutiny of the decision making process

June 12th, 2017 by Julian Wilson

It used to be thought that in exercising a contractual discretion accorded to it, in relation for example to a bonus or a share plan, an employer could, so long as it addressed the matter honestly and genuinely, make subjective qualitative judgments which would only be reviewable if they were perverse or illogical.
Braganza appears to have changed this.  The decisions since Braganza appear to show an intensification of the scrutiny given to the employer’s decision making process. Read more »


11KBW Employment Law Conferences 2017

April 5th, 2017 by Claire Halas

Employment Law Set of the Year
Chambers & Partners and Legal 500

Please join us at our annual Employment Law Conference on 8th May 2017 in London or 7th June 2017 in Leeds.

Specialist barristers from 11KBW – the leading chambers for all aspects of Employment Law – will provide updates and insights on key areas of the law including whistleblowing, modern slavery and equal pay and benefits.  The day starts with three sessions focussing on areas of particular interest to commercial employment practitioners, and ends with a panel discussion on the sensitive and topical issue of  religious discrimination and religious neutrality.

This year we are delighted to have Sir Patrick Elias, recently retired Lord Justice of Appeal and founding member of 11KBW, deliver our keynote address in London. Read more »


Mobility clauses

January 16th, 2017 by James Goudie KC

In Kellogg Brown & Root (UK) Ltd v Fitton, 0206/16, the EAT revisits the interface between redundancy situations and mobility clauses.  Two principles are reaffirmed and applied.  The first, confirmed by the Court of Appeal in Home Office v Evans   ICR 302, is that an employer is lawfully entitled to invoke an express contractual mobility clause; and avoid liability for a statutory redundancy payment, notwithstanding that a redundancy situation has arisen or might arise on the closure of part of a business.  The second is that if an employee refuses to relocate and the employer dismisses the employee the employer can rely on that refusal to obey a lawful instruction as misconduct, but the ET must then go on to consider the question of fairness, ie whether the employer has acted reasonably in giving the instruction and whether the employee had acted reasonably in refusing to comply with that instruction.


The BHS Scandal – the law unwrapped

November 7th, 2016 by Julian Wilson

The collapse of BHS into administration left 11,000 employees facing an uncertain future and 20,000 current and future pensioners facing substantial cuts to their entitlements. According to the Work and Pensions Select Committee, BHS encapsulates many of its ongoing concerns about the regulatory and cultural framework in which business operates, including the ethics of business behaviour, the governance of private companies, the balance between risk and reward, mergers and acquisitions practices, the governance and regulation of workplace pension schemes, and the sustainability of defined benefit pensions.   

I want to briefly consider 3 aspects of the law as they relate to BHS: (1) Remedying the pension deficit; (2) The dividends and the deficit; (3) The Directors’ duties and the degree of regard to the position of employees and pensioners. Read more »


11KBW Double Award Winners – Employment Law Set of the Year

October 28th, 2016 by Claire Halas

We are delighted to have won Employment Law Set of the Year at last night’s Chambers Bar Awards. Earlier this week we were also awarded Employment Law Set of the Year at the Legal 500 UK Awards 2017.


11KBW nominated for 3 awards at the 2016 Chambers Bar Awards

September 19th, 2016 by Claire Halas

We are delighted to announce that Chambers has received 3 nominations in this year’s Chambers and Partners Bar Awards; Anya Proops QC has been nominated for Defamation Silk of the Year; Jane McCafferty for Employment Law Junior of the Year; and Chambers for Employment Law Set of the Year.

The awards take place at The London Hilton on Park Lane on Thursday, 27th October 2016. A full list of nominations can be viewed here.


Head Teacher’s Safeguarding responsibilities

July 20th, 2016 by James Goudie KC

A v B Local Authority and C Governing Body of School [2016] EWCA Civ 766 is concerned with whether an ET had been entitled to find that a Head Teacher of a primary school had been fairly summarily dismissed for gross misconduct, i.e. putting the safety of children at risk, for failing to disclose to the school authorities her close personal relationship with a male (IS) convicted of making indecent images of children by downloading them onto his computer. The ET’s finding was upheld by the EAT (Wilkie J presiding) and has now been upheld by a majority in the Court of Appeal (Black and Floyd LJJ).  Elias LJ dissented.

Read more »


Temporary agency work

July 7th, 2016 by James Goudie KC

Article 1 of Directive 2008/104/EC on Temporary Agency Work defines its scope. Two concepts that are involved are “worker” and “economic activity”.  Both have been considered in an Advocate General’s Opinion on 6 July 2016 in Case C-216/15, Betriebsrat der Ruhrlandklinik v Ruhrlandklinik.

Article 1 of the Directive provides that the Directive applies to “workers” with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction. It applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in “economic activities” whether or not they are operating for gain. Read more »


Brexit and the Future of Data Protection

June 24th, 2016 by Anya Proops KC

As we all reel in shock at today’s news, thoughts will inevitably turn to how our impending divorce from Europe will impact on the sphere of data protection. Our own data protection laws have of course been profoundly shaped by Europe. Until yesterday, many had assumed that Europe’s control over our data protection laws would in due course become even more intensive, as we journeyed into a world in which the EU Data Protection Regulation reigned supreme across Europe. However, the clocks have stopped. The Regulation is not to become law in the UK. The future of data protection law is therefore necessarily shrouded in mystery.
Read more »



June 15th, 2016 by James Goudie KC

In McBride v Scottish Police Authority [2016] UKSC 27 the Supreme Court has considered the remedy for unfair dismissal of reinstatement, which must of course be contrasted with the remedy of re-engagement.  An ET has no power to order reinstatement in terms which alter the contractual terms of the complainant’s employment.  The question was whether that is what the ET had purported to do in this case.  The Supreme Court held that it had not.

The appeal arose from the scandal over the disputed identification of a fingerprint in a murder inquiry. A fingerprint at the murder scene was identified by four experts from the Scottish Criminal Records Office fingerprint bureau as belonging to DC McKie. As a result of the identification, DC McKie was charged with perjury for giving evidence that she had never been to the crime scene. During DC McKie’s trial differences of opinion emerged about the fingerprint identification and she was acquitted.

Read more »