Private Law Perspectives on the Contract of Employment

About the event

This conference will develop a dialogue between private lawyers and labour lawyers on theoretical and practical issues as they relate to the employment contract (broadly conceived). For historical reasons, this has been an underdeveloped dialogue in English law. The 'autonomy' of labour law as a discipline was based upon its rejection of the common law (and English judges), which was regarded by workers and trade unions as an instrument of class oppression.
 
In recent times, it is less clear that this strong 'autonomy' thesis has supported the worker-protective goals of labour law. Private law has become more receptive to approaches that support worker protection, with further exploration of relational contracts and norms of good faith in contract law. In leading appellate cases in labour law, private law doctrines have been central to the litigation: USDAW v Tesco Stores Ltd (on appeal to the UKSC, contract interpretation, implied terms, availability of injunctive relief and adequacy of damages), Tyne and Wear Passenger Transport Executive (t/a Nexus) v National Union of Rail, Maritime and Transport Workers (availability of rectification for collective agreements), Cox v Secretary of State for the Home Department (contractual effect of check-off arrangements). This represents a timely moment to recognise the value of scholarship with a strong private law dimension, and the workshop will provide an opportunity to develop this.

The confirmed speakers

• Prof Alysia Blackham, Melbourne Law School, University of Melbourne
• Professor Douglas Brodie, University of Strathclyde
• Professor David Cabrelli, University of Edinburgh
• Professor Anne Davies, University of Oxford
• Professor Simon Deakin, University of Cambridge
• Jordan English, St John’s College, Oxford
• Dr Gabrielle Golding, Adelaide Law School
• Professor Catharine MacMillan, King’s College London
• Professor Marc Moore (UCL)
• Professor Janet O’Sullivan, University of Cambridge
• Professor Robert Stevens, University of Oxford

The Programme

Speaker Abstracts

Remedies in workplace discrimination law: private law perspectives on damages
Prof Alysia Blackham, University of Melbourne

Damages for workplace discrimination claims are generally very low, and are rarely high. This can act as a significant disincentive to claiming, inhibiting the individual enforcement of discrimination law. This has systemic consequences: if individuals are unwilling to bring a complaint, and discrimination law relies on individual complaints for enforcement, discriminatory treatment at work is likely to go unchallenged.

There is a need, then, to reconsider how we assess and award damages in workplace discrimination law. Damages in discrimination claims are compensatory, and appear to be analogous to damages in tort. Tort law may therefore offer an important means of critiquing, supplementing and developing discrimination law jurisprudence, and strengthening the employment contract as broadly conceived.

This paper compares the way in which tort law has been used to shape and frame damages in discrimination cases in the UK and Australia. In Australia, in Richardson v Oracle Corporation Australia Pty Ltd (2014), tort (and, in particular, negligence) cases were used to recalibrate general damages awarded in discrimination claims. Ten years on, this paper considers the impact of Richardson in the Australian context, and the extent to which this approach has strengthened the award of damages in employment discrimination cases. By contrast, in the UK, the link between tort and discrimination law is well established for psychiatric injury, but less developed in relation to compensation for injury to feelings. This paper considers, then, the challenges that may arise in seeking to re-calibrate the Vento guidelines to better compensate for non-financial harms in discrimination claims.

The progressive impact of the law of tort
Professor Douglas Brodie, University of Strathclyde

Historically the law of tort, from an employee’s perspective, has often been an unwelcome presence in the workplace. The doctrine of common employment acted as a barrier to recovery for personal injury. Where collective relations were concerned the constantly evolving economic torts would often dimmish the protection afforded by the statutory immunities should industrial action arise. The contemporary picture is a very different one. The common law of employer’s liability has, to a considerable extent, evolved to compensate for the impact of the Enterprise and Regulatory Reform Act 2013. Developments in the law of the economic torts have not posed a threat to collective interests for quite some time but that may be explained by the remarkable extent of hostile legislative activity.

Against that backdrop this paper looks at developments in the law of vicarious liability where the law of tort has been concerned to ensure that its scope is not circumvented by employers resorting to contractual arrangements that do not give rise to a contract of employment. The `akin to employment’ test has emerged to combat this issue and has had a powerful impact. The paper explores whether this development will be mirrored in the law of the employment contract. It asks whether the policy considerations which underpin facilitation of recovery by third parties are more cogent than those concerned with employee protection.     

The Relationship Between Variation of the Employment Contract and ‘Fire & Rehire’: The Nature, Role and Quality of Worker Consent
Professor David Cabrelli, University of Edinbrugh

One of the great paradoxes of labour law is the patent incongruence between the static contractual framework that governs employment and the inherently dynamic character of the relationship itself. The tendency of the law to reduce the employment contract to ‘an initial treaty which remains in force until its termination [or] unless… modified by another equally decisive and definitive agreement’ generates a sizeable degree of artificiality into the governance of the relationship.  The managerial prerogative, the implied duty of the employee to obey reasonable orders and instructions and the law regulating the variation of the employment contract are each pressed into service by the common law to address the variety of tensions that emerge as a result of this dissonance.

It is to the latter issue that this paper will steer the discussion. In particular, the analysis will focus on the nature and requisite quality of the worker’s consent that is demanded by the law to give effect to a variation of the employment contract. This paper will provide a sketch of the orthodox rules of contract law on consent to a contractual variation and compare them with the extant rules applicable in relation to the law governing the contract of employment. The principal claim that I will make is that the broader the scope (of the legal criteria) for consent to variation to arise, the greater the irrelevance of, and the extent to which, the law of termination of the employment contract and the question of ‘fire and rehire’ will be crowded out of view. The insight is that the recognition of a more accepting or stricter notion of the legal conception of consent has significant repercussions for the law regulating employment contracts, giving rise to opposing policy outcomes.

Private law perspectives on the employment contract injunctions
Professor Anne Davies, University of Oxford

This paper will examine the circumstances in which an employee may be able to obtain an (interim) injunction to restrain their employer from breaching a term of their contract of employment. The best-known cases in this area deal with contractual disciplinary procedures, particularly for doctors and other professionals, but there are also cases concerning other types of restriction on termination (such as ‘last in, first out’ redundancy selection) and other kinds of employer decisions (such as instructions to undertake a different type of work). In all these cases, the courts apply the usual American Cyanamid test to determine whether the injunction should be granted. A particular problem with this test is that courts often conclude that – for employees who are not professionals with a reputation to protect – damages will be an adequate remedy. However, this ignores the importance of non-financial considerations in any contract of employment.

Two other employment-specific arguments often play out in injunction cases, both of which are questionable. One is that an injunction will be a ‘burden on business’, and that employees should be encouraged to take their damages and move on. This argument is often used to allow an employer to escape what has turned out to be a bad bargain (Royal National Theatre, Tesco). The other is that mutual trust and confidence must persist between the parties in order for the injunction to be granted. As many commentators have pointed out, this is a throwback to the idea of employment as a personal relationship between two individuals, and is therefore of less relevance in the modern labour market. More concerning in practice is the tendency of some judges to accept subjective assertions that the employer no longer has confidence in the employee, even when the employer has failed to carry out a proper process to determine whether the employee has done anything wrong.

Overall, I argue that the injunction is a potentially powerful weapon to secure compliance with employment law, but that its utility in practice is limited because of an unfortunate tendency on the part of the courts to fail to take seriously the contractual rights of working people.  

Why There is Not (Yet) A Principle of Favourability in British Labour Law
Professor Simon Deakin, University of Cambridge

The principle of favourability expresses two ideas.  Firstly there is the idea of the hierarchy of sources, or the principle of favourability in the broad sense.  This holds that a source or norm has greater weight according to whether it is public (versus private) and collective (versus individual).  In the event of a conflict of sources, public and collective norms prevail over private and individual ones (so no derogation in pejus).  Thus the constitution, as the apex of the national system (if potentially subject to some international norms), prevails over legislation, which prevails over regulations.  Relatedly, all public (legal) sources prevail over conventional ones (collective agreements and contracts).  Across conventional sources, sectoral agreements prevail over company-level ones. The least important source is individual agreement.  

The second idea is the principle of favourability in the more narrow sense.  This holds that lower level sources can sometimes prevail over higher ones but only if they offer greater protection to the worker (derogation in melius).  

It is clear that the principle of favourability reflects the protective logic of labour law: the individual worker, faced with the employer’s superior contractual power, is in need of the protection granted by legislation and collective bargaining. Britain has a mature and well developed labour law system.   Why is there then no principle of favourability in British labour law?  Had it existed, some key decisions of recent years would surely have been decided differently. They include Johnson v. Unisys and Edwards v. Chesterfield (holding that contract cannot confer greater protection than statute: no derogation in melius) and Deliveroo (holding that a contract term, the ‘substitution clause’, can undercut a protective statute: derogation in pejus).  

By contrast, the principle of favourability has the status of a general principle in many civilian systems, meaning that it operates as a kind of default rule which the courts will observe unless there is good reason not to. This status is, however, not just the result of the role played by general principles in these systems.  The principle of favourability is recognised by virtue of the inclusion of social rights in the constitutions of civil law systems. Thus it ultimately owes its status to the superior force of the constitution itself.  

The UK lacks a codified constitution and social rights barely feature in what passes for constitutional texts in such a system. But this does mean that the principle of favourability is entirely absent. It can be found in statutory anti-avoidance clauses such as section 203 ERA, and in some judicial texts, such as Lord Leggatt’s judgment in Uber.  The idea that a norm may operate asymmetrically, favouring the employee only but not the employer, is present in the case law on the written statement under section 1 ERA.

Nor can it be said that the apparent rejection of the principle of favourability in Johnson, Edwards and Deliveroo has much to be said for it.  On the contrary, each of these decisions can be seen as running contrary to certain constitutional principles.  One of these is that statute prevails over the common law, a consequence of parliamentary sovereignty.  Deliveroo contradicts that principle.  Another is that statutes should be interpreted according to a combination of their text and purpose.  Johnson and Edwards contradict that principle, since not only does the ERA nowhere state that it is to operate as a ceiling of rights; section 203 expressly states that it is a floor.

If we viewed Johnson, Edwards and Deliveroo for what they really are – cases about conflicts between competing sources of labour law – their inconsistencies would become only too clear.  Far from being marginal to or excluded from British labour law, the principle of favourability could be about to come into its own.

Substantial Performance in Employment Contracts
Jordan English, St John’s College, Oxford

The central thesis of this paper is that something has gone wrong in the law relating to substantial performance in contracts of employment. As the law stands, cases such as Wiluszynski v Tower Hamlets London Borough Council [1989] ICR 493 suggest that an employee’s entitlement to be paid is conditional on exact performance of each and every obligation by the employee. In that case, the Court of Appeal held that an employee who had performed most but not all of their contractual duties, in addition to being in breach of contract, was not entitled to be paid at all for any work done because they were not ‘ready, willing, and able’ to perform and therefore had not satisfied a condition of payment. The Court also held that it was no answer to the employer’s denial of liability that the employee had ‘substantially performed’ their obligations—the ‘doctrine of substantial performance’ was applicable only to mitigate ‘the hardship of the old law as to entire contracts’. 

The paper argues that the so-called doctrine of substantial performance is simply a matter of ascertaining the relevant conditions of payment. In the context of commercial contracts, it has been said that ‘the courts lean against a construction of the contract which would deprive the contractor of any payment at all simply because there are some defects or omissions’ (Hoenig v Isaacs [1952] 2 All ER 176, 180). The result, then, of cases like Wiluszynski, is that the law in relation to substantial performance in employment contracts is out of kilter, and counterintuitively harsher on the employee, than the approach taken to the construction of commercial contracts. The paper argues that the decisions in the employment context that have led to this approach are based on a misunderstanding of precisely what obligations a person must be ‘ready, willing, and able’ to perform in order to satisfy the condition of payment. This is particularly relevant in relation to recent controversies surrounding pay deductions made by employers for actions short of strike.

Damages for Breach of the Contract of Employment: Overcoming the Challenge of Valuing the Loss of a Chance
Dr Gabrielle Golding, Adelaide Law School

The assessment of damages for breach of contract is not an exact judicial exercise, but rather a pursuit towards fairness. With contracts of employment being increasingly understood as relational, both academically and judicially, the pursuit towards fairness when measuring damages in the event of a breach ought to be paramount. While the phrase ‘damages for breach of contract’ encompasses many different types of loss, this paper examines a particular type of loss in the context of wrongful dismissal: damages for an employee’s loss of a chance to acquire a future benefit. Using English and Australian case authorities in a comparative sense, this paper exposes the challenge courts face when required to value damages for loss of a chance in the event of an employee’s wrongful dismissal. It arrives at a refreshed approach to making that valuation in a context where the contract of employment is being progressively recognised as relational.

Specific performance and the contract of employment
Professor Catharine MacMillan, King’s College London

Contracts are formed to allow one or more of the parties to obtain the performance of defined obligations and nowhere is this more true than in an employment context.  The law, however, is most reluctant to specifically enforce a contract of employment.  As Fry observed in the mid-nineteenth century ‘the relation established by the contract of hiring and service is of so personal and confidential a character that it is evident such contracts cannot be specifically enforced by the court against an unwilling party’.  While much has changed in the contract of employment since 1858, modern courts have largely adhered to this approach and left the disappointed party to a remedy in damages.  However, just as Fry limited his initial observation with the caveat that ‘in former times this seems to have been otherwise’, so, too, the modern case law admits rare exceptions to the apparent bar to an order of specific performance in a contract of employment.

This paper explores why courts are reluctant to order specific performance in the context of an employment contract.  It also assesses those instances where equity has intervened in a contract of employment.  The paper concludes with a consideration of the question of whether or not specific performance should ever be awarded to enforce an employment contract.

Reinvigorating the case for contra proferentem in employment disputes
Marc Moore (UCL)

In this paper, I will argue for reinvigorating the classical contra proferentem rule in cases involving uncertain or contested employment terms, in preference to Lord Hoffman's general reasonableness/factual matrix approach to contract interpretation as applied, e.g., by the Court of Appeal in the recent (final appeal pending) case of USDAW v Tesco Stores Ltd. Whereas the core role played today by consumer and other unfair terms legislation arguable precludes the need for contra proferentem in non-employment scenarios, the lack of counterpart legislation in the employment realm arguably necessitates that general contract law doctrines do more of the proverbial heavy lifting for weaker negotiating parties in this latter context. I will furthermore reject the potential counterclaim that unfair dismissal protection is an analogue of unfair terms legislation in the employment realm today, on the premise that, unlike unfair terms legislation, unfair dismissal law does not go to the substantive heart of contract terms and has a much more formally proscribed scope of application.

The Economic Torts
Janet O’Sullivan, University of Cambridge

In Total Network v Revenue & Customs Commissioners, Lord Walker noted a largely unarticulated reason for the development, in the late nineteenth century, of the anomalous tort of conspiracy to injure, namely ‘the deep suspicion which the governing class had, in Georgian and Victorian England, of collective action in the political and economic spheres, as potential threats to the constitution and the framework of society.’  In the light of this dictum, my paper will explore the origins of both forms of tortious conspiracy (conspiracy to injure and unlawful means conspiracy) as the common law response to collective labour action, and consider the extent to which the elements and idiosyncrasies of the modern torts remain rooted in that history, or whether they have transformed just as their modern role has transformed.
 

Is there a right to work at common law?
Robert Stevens, University of Oxford

Abstract to follow

Speakers, Chair and Commentator Biographies

A/Prof Alysia Blackham is an Associate Professor at Melbourne Law School at the University of Melbourne. She is an expert on age discrimination law and the consequences of demographic ageing for workplaces. Her research focuses on the intersection of employment law, equality law and public law, using empirical evidence to cast new light on legal problems. Alysia has published extensively across leading Australian and international journals and in legal and interdisciplinary forums. She has published two award-winning monographs, which have both been awarded the UK Society of Legal Scholars’ Peter Birks Prizes for Outstanding Legal Scholarship: Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice (Hart, 2016) (second prize in 2017); and Reforming Age Discrimination Law: Beyond Individual Enforcement (OUP, 2022) (first prize in 2023). Her research has informed discrimination law reform across Australia. Alysia has worked as an academic in Australia, Sweden and the UK, including as the Turpin-Lipstein Fellow and College Lecturer in Law and Director of Studies at Clare College, Cambridge and an Affiliated Lecturer at the Faculty of Law at the University of Cambridge. She holds a PhD in law from Gonville and Caius College at the University of Cambridge.

Douglas Brodie is Professor of Employment Law at the University of Strathclyde in the UK. He is an authority on Labour Law and Delict (Tort). His main research interests are in the area of employment contract and the history of Labour Law and in the area of Delict, the analysis of negligence. Much of his writing in recent years concerns the law of implied terms and the impact of relational contract theory on the law of the employment contract. He has a strong interest in comparative law and has a particular interest in developments in Australia, Canada and New Zealand.  

He has published widely and amongst his publications are: A History of British Labour Law (2003), The Employment Contract (2005), The Contract of Employment (2008), Enterprise Liability and the Common Law (2010) and (with G. Anderson and J. Riley) The Common Law Employment Relationship (2017).  His latest book The Future of the Employment Contract was published by Elgar in July 2021. He is currently working on a further monograph (with G. Anderson and J. Riley) which should be published in 2024.

Lord Burrows was educated at Prescot Grammar School, Merseyside and Brasenose College, Oxford. He is a Fellow of All Souls College, Oxford, a Fellow of the British Academy and, before being appointed to the Supreme Court in 2020, he was Professor of the Law of England at the University of Oxford. He is the first, and so far only, person to have been appointed direct to the highest court from a full-time position as a legal academic. He was a Law Commissioner for England and Wales (1994-1999) and the President of the Society of Legal Scholars (2015-16) and has written many books and articles especially on contract, tort, unjust enrichment, and statute law. 

David Cabrelli is the Professor of Labour Law at the University of Edinburgh. His research interests are in the fields of labour, employment and discrimination law at the national and comparative level. His research has been cited with approval by the UK Supreme Court, as well as the Hong Kong High Court and the Federal Court of Australia. His work is also frequently cited by the Law Commission and the Scottish Law Commission, as well as the UK House of Commons Library and the ILO. David is the author of one of the leading student textbooks on Employment Law in the United Kingdom. He has also recently produced a book for the general public on Employment Law, which has been published under the auspices of OUP’s popular Very Short Introductions book series.

David Craig KC is a barrister at Essex Court Chambers instructed in cases at the intersection between commercial and employment law, including “team move” litigation (e.g. Guy Carpenter v Howden; BGC Brokers v Tradition; Alesco v Bishopsgate), where “The Economic Torts” play a central role.

Shantha David is the Head of Legal Services at UNISON, the largest UK trade union, and a practising solicitor-advocate (and non-practising barrister) who has led in the field of employment law winning precedent-setting cases such as: Harpur Trust v Brazel & UNISON (UKSC), Chief Constable of PSNI v Agnew & Ors (UKSC), Lock v British Case (ECJ), UNISON, Vining & Ors v LB Wandsworth & SoS (CA), Alemo-Herron v Parkwood Leisure Ltd (ECJ). She successfully advised and acted in the ground-breaking “ET Fees” judicial review on behalf of UNISON, which resulted in the UKSC ruling that the Lord Chancellor’s decision to introduce fees in the Employment Tribunals was unlawful. She was recognised for these efforts as Liberty’s Human Rights lawyer of 2017,  won the Lexis Nexis Halsbury Rule of Law award in 2018 and was named in the Lawyer’s 2020 #Hot100 lawyer list.
 
Shantha served as Chair and member of the Law Society’s Employment Law Committee for 9 years; is a committee member of the Employment Lawyers’ Association’s Legislative & Policy Committee; and a member of Industrial Lawyers’ Society.  She recently gave evidence to the Parliamentary Bill committee on the Retained EU Law Bill. 

Paul S Davies is Professor of Commercial Law at UCL and a Barrister at Essex Court Chambers. He was previously a Fellow of Gonville and Caius College, Cambridge and St Catherine's College, Oxford. Paul has also worked at the Law Commission. He is the author of Accessory Liability (Hart Publishing, 2015; revised paperback edition, 2017), which won the main Inner Temple Book Prize in 2018, JC Smith’s The Law of Contract (3rd ed, OUP, 2021), and a co-author of Equity and Trusts: Text, Cases and Materials (3rd ed, OUP, 2019 (with Graham Virgo)). Paul is also an editor of both Chitty on Contracts and Snell's Equity. In 2020 Paul was awarded a Philip Leverhulme Prize in Law.

Jenny Eady was a barrister at Old Square Chambers, specialising in employment law, for over 20 years.  During that time, she also sat as a fee-paid Employment Judge and Recorder, was a trustee of the Free Representation Unit, and served for two terms as an independent member of the Acas Council, leading on the drafting of the Acas Code on discipline and grievance.  Taking up salaried judicial office in 2013, Jenny initially sat as a full-time Senior Circuit Judge of the Employment Appeal Tribunal, until her appointment to the High Court (King’s Bench Division) in 2019.  In 2022, Jenny returned to the Employment Appeal Tribunal as President. She is a former Chair and Hon Vice-President of the Industrial Law Society, and of the Employment Law Bar Association.  For just over a decade, Jenny was also a contributing author to Harvey on Industrial Relations and Employment Law.

Jordan English is a Supernumerary Teaching Fellow in Law at St John’s College, University of Oxford, where his research and teaching principally span contract, property, trusts, and restitution. He is the author of a forthcoming monograph, Discharge of Contractual Obligations for Failure of Condition (Oxford University Press 2024), as well as the co-author of The Law of Tracing (Federation Press 2021). His recent work on contract law and employment contracts in particular includes ‘Employment Contracts, Conditions, and The Relationship of Employment’ (2024) 140 Law Quarterly Review (forthcoming) and ‘The Nature of “Promissory Conditions”’ (2021) 137 Law Quarterly Review 630. His research has been cited by the cited by the High Court of Australia, the Full Court of the Federal Court of Australia, and the England and Wales High Court (Commercial Court).

Sarah Fraser Butlin KC is a barrister and academic, practising across employment law and clinical negligence. She has appeared in a number of high profile cases concerning worker status and religion and belief discrimination. She is a Fellow of Selwyn College Cambridge and writes extensively, most recently exploring the situation of EU migrant workers post-Brexit and their interaction with the law in everyday life. She is currently undertaking a research project, funded by the ELA, assessing how employment dispute resolution might be achieved more effectively.

Dr Gabrielle Golding is a Senior Lecturer in Law at The University of Adelaide whose research  focuses on the intersection between employment and contract law. Her latest monograph, ‘Shaping Contracts for Work’ (OUP 2023), examines the common law's role in shaping contracts for work through the normative influence of terms implied by law.

Rachel Hunter is an associate in the Pensions, Employment and Incentives team at Slaughter and May. She has a broad multi-disciplinary practice covering a wide spectrum of legal issues arising in the workplace. She has significant experience of matters involving senior executives, including issues around employee share schemes, and advises multiple listed companies in this area. She frequently advises on large-scale workplace change projects, including collective redundancies and TUPE. She also has a particular interest in contentious work, including the enforcement of restrictive covenants and malus and clawback disputes. Before joining Slaughter and May, she completed her law degree and the Bachelor of Civil Law at the University of Oxford and edited the law reports of Gibraltar. She is a member of the Employment Lawyers Association, the Share Plan Lawyers Group and the Association of Pension Lawyers.

Adam Kramer KC is a barrister at 3 Verulam Buildings who took silk in 2021. He acts in a broad range of commercial disputes work, including civil fraud, insurance, securities claims and other group litigation, energy and banking, both in courts and international arbitration. He also sits as an arbitrator from time to time. Adam was a lecturer and academic for a few years (Durham, Oxford) before coming to the Bar, and is the author of leading practitioner text The Law of Contract Damages (Hart, now 3rd edition). He still writes articles and gives the occasional lecture, and is an advocacy trainer at Gray’s Inn.

Marc Moore is Professor of Corporate/Financial Law at UCL. His research and/or teaching interests intersect the fields of company, finance, contract and labour law.  Marc has previously held teaching positions at the University of Cambridge and the University of Bristol. He is also a Global Distinguished Professor of Law at the University of Notre Dame.

Janet O'Sullivan is a Professor of Private Law, University of Cambridge, and is Vice-Master and Director of Studies in Law at Selwyn College, Cambridge. She gained a triple first in Law as an undergraduate in Cambridge, practised as a commercial solicitor with Slaughter and May after graduating, before returning to Cambridge to take up a Fellowship at Selwyn in 1994. She specialises in the Law of Contract and the Law of Tort, and has published extensively in these areas, in particular the field of professional negligence, as well as being the author of a successful OUP textbook on the Law of Contract, now in its tenth edition. In 2005 she was awarded the Pilkington Teaching Prize for excellence in university teaching.  She has three adult children, one of whom has Down syndrome, and lives in North Essex.

Daniel Oudkerk KC has a broad-based trial and advisory practice. He has appeared as the lead advocate at every level in Court (Commercial Court, Chancery Division, King’s Bench Division, Court of Appeal and the Supreme Court) and in arbitration. He is recognised as a leading silk in Commercial Dispute Resolution, Employment Litigation, and Crypto and Blockchain Assets. “The top pick for employment and commercial disputes cases” (Chambers & Partners, Employment), Daniel has been instructed in many of the most significant commercial employment disputes of recent years. He led the claimant team in the record breaking Guy Carpenter v Howden team move litigation (2023), acted on two high profile F1 disputes instructed by Red Bull (2022); appeared in the Supreme Court in the first employee competition case in 100 years to reach the highest court (Egon Zehnder v Tillman SC (2019)); acted for the claimants in ‘the last of the great payday disputes’ (Gruber & Ors v AIG, a $100m claim (2016-20)); and acted for the Tullett in the landmark Tullett Prebon v BGC team move litigation in the KBD and Court of Appeal. He is routinely instructed in injunctions, breach of confidence claims, garden leave and restrictive covenant disputes.

Amy Rogers KC is a barrister at 11KBW, practising across all areas of employment law but with particular expertise in restraint of trade and team poaching disputes, disputes in relation to duties of confidence, and other commercial employment claims. Before taking Silk, Amy was recognised as a ‘Star Individual’ in employment law (“fiercely intelligent and very collaborative, a superb advocate with brilliant written work. She ticks every box”). She has been the Chambers and Partners Employment Junior of the Year, the Legal 500 Employment Junior of the Year, and the ‘International Employment Lawyer’ Junior of the Year. Amy co-edits ‘International Employment Disputes’ (Sweet & Maxwell, 2019).

Lady Simler practised as a barrister at Devereux Chambers where she specialised in employment law and tax litigation.  She started sitting part-time as a criminal Recorder in 2002 and later as a Deputy High Court Judge.  She was appointed a High Court Judge (Queen’s, now King’s Bench Division) in 2013 and was President of the EAT from 2015-2018. She was appointed to chair the Diversity and Inclusion Committee of the Judges' Council in 2019 and in the same year she joined the Court of Appeal. She was sworn in as a Justice of the Supreme Court on 14 November 2023.

Rebecca Tuck KC has practised employment and discrimination law from Old Square Chambers since 1998, and took silk in 2020. She is instructed by both employers and employees, and also acts as an investigator, mediator and sits as a fee paid employment judge. She has been chair of the Industrial Law Society and head of the employment group in her chambers, and an author of Harvey on Employment Law and Industrial Relations. She is currently the Head of the Diversity, Equality and Inclusion Committee of the South Eastern Circuit.

Lord Justice Underhill started practice as a barrister at Fountain Court Chambers in 1977.  He did a wide range of civil work, with a particular speciality in employment law.  He sat part-time in the EAT from 2000-2003 and also as a criminal Recorder and Deputy High Court Judge.  He was appointed a High Court Judge (Queen’s Bench Division) in 2006 and was President of the EAT from 2009-2011.  He chaired the Committee which drafted the 2013 Employment Tribunal Rules.  He was Chairman of the Bar Pro Bono Unit (now Advocate) from 2002 to 2005. He was appointed to the Court of Appeal in 2013 and has been Vice-President (Civil Division) since 2018.

Charles Wynn-Evans is a partner in Dechert LLP’s London office, having trained at the firm and qualified as a solicitor in 1992. Formerly the head of the firm’s London employment team, he is now the firm’s International General Counsel and chair of its London pro bono committee. He is a member of the Board of JUSTICE and was formerly a fee paid employment judge and deputy chair of the Central Arbitration Committee. He has written regularly on labour and employment law issues across a variety of academic and practitioner journals, such as the Industrial Law Journal, ELA Briefing, and the Employment Law Journal. He is the author of The Law of TUPE Transfers (Oxford University Press, 3rd edition, February 2022), contributed the Transfer of Undertakings section to Oxford University Press Online Encyclopedia of EU Law (2022), and was joint editor of the Practice and Procedure section of Harvey on Industrial Relations and Employment Law (2018-2021). He was awarded a Ph.D by the University of Bristol in 2022 supervised by Professor Alan Bogg.

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