Daniella Gilbert: Leading Employment Law Advocate Specializing in Discrimination Issues

Discrimination Law Update Daniella Gilbert 22 March 2023

DANIELLA GILBERT DANIELLA GILBERT "Daniella is an excellent advocate who commands the room. She is superb in cross- examination, tenacious on the details and her advice is clear, concise and tactically- driven." Legal 500 2023 Call: 2007 For enquiries please call +44 (0)20 7353 0711 or email Daniella Gilbert is an experienced practitioner specialising in employment law and commercial litigation. She has been recognised as a leading junior in employment law in the Legal 500. She acts for both claimants and defendants / respondents. Her clients range from individuals, employees, sole traders and small businesses to large employers and Fortune 500 companies. Daniella s precision and attention to detail has garnered her a reputation as an advocate well able to undertake particularly complex and high value cases. She appears in courts at many levels including the Court of Appeal, High Court, Employment Appeal Tribunal, Employment Tribunal and County Courts. Clients value her thorough preparation, ability to quickly grasp the complexities of a case and provide detailed and clear advice, and her commitment to robustly representing her client s position. Daniella is qualified to accept instructions via the Public Access Scheme. 1 3 Pump Court, Temple, London, EC4Y 7AJ 31 Southgate Street, Winchester, SO23 9EB 5 Temple Chambers, Temple Street, Swindon, SN1 1SQ T: 020 7353 0711 F: 0845 259 3241 DX: 362 London, Chancery Lane T: 01962 868161 F: 0845 259 3240 DX: 2514 Winchester T: 01793 539899 F: 0845 259 3242 DX: 38639 Swindon 2

Marital status discrimination Ellis v Bacon [2022] EAT 188 Less favourable treatment of Mrs. Bacon following breakdown of her marriage to MD/ majority shareholder ET failed to consider / apply previous authorities and fell in to error Hawkins v ATEX Group Ltd (and others) [2012] IRLR 807 Gould v Trustees of St John's Downshire Hill [2020] IRLR 863 Test: not whether treatment was because they were married to a particular person, but whether because they were married (full stop!) Comparator is key

Victimisation bad faith Kalu v University Hospitals Sussex NHS Foundation Trust [2022] EAT 168 Practice and procedure where it is alleged that a protected act is not protected because it was done in bad faith No absolute rule that a Tribunal can t consider a point not put in cross-examination But where it is a serious issue here an allegation of dishonesty and the finding was material to the Tribunal s reasoning, it was unfair not to have put the question

Whistleblowing and victimisation Kong v Gulf International Bank (UK) Limited [2022] EWCA Civ 941 Application of the separability principle Is the motivation for the detriment the PA / PD? Or was the PA / PD simply the context in which the motive arose? 'The statutory question to be determined in these cases is what motivated a particular decision-maker; in other words, what reason did he or she have for dismissing or treating the complainant in an adverse way. This factual question is easy to state; but it can be and frequently is difficult to decide because human motivation can be complex, difficult to discern and subtle distinctions might have to be considered.

Whistleblowing and victimisation Kong v Gulf International Bank (UK) Limited [2022] EWCA Civ 941 Once the reason for treatment is identified, it is necessary to evaluate whether those reasons were separate from the PD, or so closely connected that no distinction could be drawn Necessary and permissible, or whistleblowers would have immunity for behaviour and conduct no matter how bad Likely to be few cases in which employers will be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason for treatment from the protected disclosure itself, though Court did not exclude the possibility

Direct sex discrimination Earl Shilton Town Council v Miller [2023] EAT 5 Female employees required to use male toilet facilities Amounted to direct sex discrimination the fact that a man might also be able to assert direct sex discrimination would not be fatal to the claimant's claim . Nor did it matter that another woman had not objected to the arrangements because the discriminatory impact was to be assessed from the perspective of the claimant. This was no a case in which the ET had to consider the mental process of the discriminator, because the treatment was inherently because of sex

Settlement agreements & section 147 EqA 2010 Bathgate v Technip UK Ltd and others [2022] EAT 155 Section 147: Meaning of Qualifying settlement agreement Conditions to be satisfied include: (3)(a): the contract is in writing (3)(b): the contract relates to the particular complaint a particular complaint could only be one that had already arisen between the parties whilst at common law it might be possible to waive a right to sue for age discrimination claims a claimant was not yet aware of, section 147 restricted the ability to do so

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