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Chambers of David Berkley QC

Work 01865 793736
Fax 01865 790760

Andrew MacPhail

Work 01865 793736
3PB (Chambers of David Berkley QC)

Work Department



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 Appeal Tribunal appearances
Science Warehouse Ltd v Mills [2016] 1 ICR 252 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.

In May 2015 Andrew appeared in Ms Meade v Oxfordshire County Council UKEAT/0410/14 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.

In April 2015 Andrew successfully resisted an appeal by the employer in Window Machinery Sales Ltd v Mr Luckey UKEAT/0301/14.  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.

In February 2014 Andrew appeared in the EAT for 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.  The matter was concerned with whether 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.  The EAT 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.

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:
1. A speech on “Mass Equal Pay Litigation” at an event for local authorities run by South East Employers. 
2. A seminar on “TUPE” for a regional branch of the SLG group (“solicitors in local government”).
3. A seminar on “Unauthorised deductions and breach of contract” for the employment team of a firm of solicitors.
4. A seminar on “TUPE” for the employment team of a firm of solicitors.
5. 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.


Called 2007; Middle Temple.


Employment Law Bar Association; Employment Law Association.

Regional Bar : South Eastern Circuit


Within: Employment – Leading juniors

Andrew MacPhail - 3PBA very user-friendly barrister.

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