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Andrew MacPhail

Andrew MacPhail

Call 2007

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MacPhail, Andrew - Ranked in Chambers and Partners UK Bar Directory 2017

Andrew MacPhail is recognised for his expertise by the Chambers & Partners UK Bar Directory 2017.

Employment - Western (Bar) - Up and Coming

Esteemed for his experience in a diverse array of employment law disputes, ranging from whistle-blowing, discrimination and harassment, to equal pay, unfair dismissal and TUPE.
Strengths: "His experience at tribunal covers a wide range of employment law areas." "He is often instructed for complex multi-day discrimination and whistle-blowing hearings."
Recent work: Acted for the respondent council in Ms Meade v Oxfordshire County Council, an appeal against the judgment of the Employment Tribunal. Ms Meade's claims for whistle-blowing detriment were dismissed at appeal.

Chambers & Partners UK Bar Directory 2016.

Employment - Western (Bar) - Up and Coming

Has represented both claimants and respondents in matters concerning issues as diverse as whistle-blowing, unfair dismissal, TUPE, equal pay, unlawful deductions and breach of contract.



Strengths: "He's calm and reassuring, and has a confident approach. He always delivers and always gets good results." "He's sensible, gives the client confidence, and can boil down the information to its essential points."


Chambers & Partners UK Bar Directory 2015.

Employment – Western Circuit - Band 2 Set

Expertise: "He is a thorough and systematic barrister. You always know when Andrew is instructed that he will devote his full care and attention to the case." "He's quite technical but very effective as an advocate, and always invested in his work."

The Legal 500 - The Clients Guide to Law Firms

Andrew MacPhail is recommended by the Legal 500 Bar Directory 2016 for his expertise in the Regional Bar - South Eastern Circuit
Employment – Leading juniors
Andrew MacPhail - A pure employment expert.



Andrew specialises solely in employment law and related matters.  He is recognised for his expertise by the Chambers & Partners UK Bar Directory and by the Legal 500 UK Bar Directory.

Employment and Equalities

Overview

Andrew is regularly instructed to represent both claimants and respondents at employment tribunal hearings.  He is often instructed for multi-day hearings addressing matters such as discrimination and whistle-blowing.

Andrew is also often instructed for Employment Appeal Tribunal matters (three appearances at the EAT in 2015).

His experience at tribunal covers a wide range of employment law areas including whistle-blowing, discrimination (including sex, race, disability, pregnancy and age), harassment, victimisation, equal pay, unfair dismissal, TUPE, unlawful deductions and breach of contract.

Andrew is also regularly instructed to advise on prospects and to draft pleadings.

Recent Employment Tribunal appearances (2016):

Successful discrimination claim against NHS Trust
Whilst employed C pursued a number of grievances about various matters.  R dismissed C purportedly on the basis of a breakdown of trust and confidence.  In the circumstances, R chose not to comply with its usual disciplinary procedures.  C brought claims for race discrimination and unfair dismissal.  Andrew represented at a multi-day hearing on liability.  The ET upheld the claim for unfair dismissal, as well as the race discrimination claim relating to the manner of dismissal.  Remedy is being determined.  R has appealed to the EAT.

Successful defence against claims for EqA victimisation and ERA whistle-blowing
Whilst employed C pursued a number of grievances about various matters, including alleged discrimination.  In due course C resigned and subsequently pursued multiple claims for victimisation and whistle-blowing detriment, as well as unfair (constructive) dismissal.  Andrew represented at a multi-day hearing on liability.  The ET dismissed the claims. 

Successful determination of Employee Status
Andrew represented C at a PH to determine whether or not he was an employee.  R contended that C had been self-employed and neither an “employee” nor a “worker”. 

C argued that his period of engagement with R was covered by an umbrella employment contract; in the alternative he contended that each and every assignment (of which there were 100s) was a contract of employment, and that he could rely on the continuity of service provisions of the ERA to demonstrate qualifying period.  The ET upheld the latter argument and as such concluded that C was an employee with qualifying service.  R has appealed to the EAT.

National Minimum Wage

Andrew has represented two different employees in unconnected claims, albeit both in pursuit of compensation for breach of NMW in respect of payment for “sleep-in” shifts.  Andrew succeeded in both.  In each case the respective employer has appealed to the EAT.

Recent Employment Appeal Tribunal appearances:

Science Warehouse Ltd v Mills [2016] 1 ICR 252
The matter was heard at the EAT in October 2015, with Andrew acting for Ms Mills (Respondent to the appeal).  The resulting EAT decision represents one of the first EAT authorities in respect of the ACAS pre-claim conciliation procedure. 

Science Warehouse had appealed a decision of the ET made at a preliminary hearing to permit Ms Mills to add a claim for victimisation in respect of a matter postdating both the ACAS early conciliation and the claim form.  The appeal was pursued on the basis that the ET lacked jurisdiction to grant such permission given Ms Mills’ failure to enter ACAS early conciliation in respect of the new victimisation claim.  The appeal was successfully resisted.  The EAT agreed that whether or not to permit an amendment to a claim is a matter for the discretion of the ET, and compliance (or not) with the ACAS pre-claim procedure is not determinative but rather simply one of various factors to consider.

Ms Meade v Oxfordshire County Council UKEAT/0410/14
In May 2015 Andrew appeared in this EAT hearing representing the Council.  The Council’s appeal against the Judgment of the ET was upheld and the EAT dismissed the Claimant’s claims.  Andrew was also successful in resisting the Claimant’s cross-appeal.

Window Machinery Sales Ltd v Mr Luckey UKEAT/0301/14
In April 2015 Andrew successfully resisted an appeal by the employer.  The employer appealed against the Judgment of the ET awarding Mr Luckey loss of earnings up to point of expected retirement.  The principal ground of appeal was that the ET had erred in respect of the issue of the duty to mitigate (the ET had found that Mr Luckey had made no attempt to find another job).  The core appeal was dismissed.

North Somerset Council in Robert Sage Ltd t/a Prestige Nursing Care Ltd v Mrs SJ O'Connell and Others UKEAT/0336/13 & UKEAT/0337/13
In February 2014 Andrew represented North Somerset Council in their appeal.  The argument was that the ET had misapplied the law in determining (i) that the condition set out at r3(3)(a)(ii) of TUPE 2006 was satisfied and/or (ii) that a particular claimant was “assigned” to the relevant grouping for the purposes of r4(1) of TUPE 2006.  The EAT rejected the first ground of appeal, but upheld the second ground and substituted its view that the relevant claimant had not been “assigned”.

Equal pay

Andrew has a particular interest in equal pay and has experience in respect of mass equal pay litigation arising from the "Single Status" agreement and related matters. 

Judicial mediation

Andrew has represented parties at Judicial Mediation on a number of occasions.

Injunctions

Andrew has experience of advising on issues relating to restrictive covenants.

Conferences and seminars

Andrew enjoys delivering training seminars.  He is happy to explore potential options upon enquiry.  Events to date include:

  • A speech on “Mass Equal Pay Litigation” at an event for local authorities run by South East Employers. 
  • A seminar on “TUPE” for a regional branch of the SLG group (“solicitors in local government”).
  • A seminar on “Unauthorised deductions and breach of contract” for the employment team of a firm of solicitors.
  • A seminar on “TUPE” for the employment team of a firm of solicitors.
  • A seminar on “Holiday Pay” for the employment team of a firm of solicitors.

Other experience

Prior to joining 3PB Andrew gained invaluable experience working in the employment department of a major corporate firm.  He has also undertaken a period of secondment in the legal department of a local authority. 

Before retraining as a barrister Andrew spent nine years in the corporate world.  This experience enables Andrew to appreciate employment disputes, and their context, on a very practical level.

See also
  • General Information

Practice Groups

  • General Information

Areas of Expertise

News

June 10 2016:

3PB Barristers Employment team delivers Mock ET and Employment Law training to more than 200 ACAS delegates ...read more


... more news

Academic Qualifications

MA Hons, Classics, University of Edinburgh

Graduate Diploma in Law, College of Law

Bar Vocational Course, College of Law

Professional Bodies

  • Employment Law Bar Association (ELBA)
  • Employment Lawyers Association