3PB

Employment and Discrimination; Commercial

Sarah Clarke is an experienced advocate, specialising in Employment and Commercial law.

Typical areas in which she receives instructions include:

Employment

• All forms of discrimination claims under the Equality Act 2010

• Interim Relief applications

• TUPE

• Whistleblowing

• Unlawful deduction from wages

• Unfair dismissal

Commercial

• Restraint of trade, including claims involving issues arising out confidentiality, non-solicit and non-compete clauses

• Bonus payments

• Breach of contract

• Misrepresentation

• Interim injunctions

Employment and discrimination

Sarah is an employment law specialist. She appears for both claimants and respondents in the Employment Tribunal and the Employment Appeal Tribunal. She has experience of the following types of claims:

• Unfair and wrongful dismissal

• Interim Relief applications

• Sex discrimination

• Race discrimination

• Disability discrimination including failure to make reasonable adjustments claims, discrimination arising from disability and direct discrimination

• Sexual orientation discrimination

• Maternity discrimination

• 'Whistleblowing' claims

• Unlawful deduction from wages/ holiday pay claims

• Claims under the National Minimum Wage Regulations 2015

• Illegal contracts of employment

• TUPE

• Equal pay

Recent cases:

• Chowdhury v Marsh Farm Future UKEAT/0205/DA. 

• Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Trust UKEAT/0081/16/JOJ. Sarah successfully appealed a decision that a dismissal was fair. It was argued that the decision was perverse as the judge failed to take into account relevant factors

• Anderson and ots v First Wessex UKEAT /0132/17/RN. Sarah acts for the Respondent in this matter. She succeeded at first instance, and the matter is currently listed for a preliminary hearing in the EAT. Over 100 claims were brought for detriment on the grounds of trade union membership

• Elliott v Plymouth Hospitals NHS Trust UKEATPA/0826/14/LA. Sarah appeared for the Appellant in relation to a claim for discrimination arising from disability

• Lynch v Stockley Academy UKEATPA/0097/17/BA. Sarah successfully represented the Respondent at first instance in a 10-day trial in a claim for unfair dismissal and whistleblowing. The matter is currently listed for a preliminary hearing in the EAT

• Fathers v Pets at Home Ltd UKEAT/0424/13/DM. An appeal under the Equality Act 2010, Sarah successfully argued that the tribunal had erred because they had not addressed the ‘deduced effects’ and ‘likelihood of recurrence’ provisions in determining whether or not the Claimant was disabled

• Acting for the Claimant in a claim against a well-known airline in respect of a claim that the overtime policy constitutes indirect sex discrimination and less favourable treatment on the ground of part-time worker status

• Sarah secured an extremely favourable settlement for the claimant (on day 1 of a 4-day trial) in a claim for unfair dismissal and disability discrimination against a premier league football club

• Sarah acted for the 2nd Respondent in the Remploy litigation. Claims were brought by over 1,000 employees arising out of the closure of several Remploy factories across the country as a result of a decision by the DWP to reduce funding

• Sarah successfully acted for the claimant in a 9-day trial against a major finance house in a claim for disability discrimination

• Successfully acted for the Respondent, an employment advice centre, in a 5-day unfair dismissal and discrimination on the grounds of sexual orientation claim (involving applications to the EAT)

• Acted for the Claimant, a midwife, in a 4-day trial in a claim for unfair dismissal arising out of allegations of gross negligence in respect of two births

• Acted for the Respondent in a 4-day trial in a claim for disability discrimination and unfair dismissal. The Claimant, a registered nurse in a care home for the elderly, was dismissed on the basis of gross negligence and putting residents at risk

• Acted for the Claimant in an application for a restricted reporting order in a claim against an Academy and the Principal regarding allegations of sexual harassment. Unusually it was the Respondent who sought the order, and this was successfully opposed by the Claimant. The matter was widely reported in the press.

Interim Relief applications

Sarah has a wealth of experience in dealing with applications for interim relief and has a detailed knowledge of the statutory test, process and relevant case law. By their nature they are last minute applications which require a swift turnaround and decisive advice, which she is more than happy to provide. Sarah will take a hands-on approach where required and can assist from the infancy of such claims on matters such as evidence to be collated, tactics and drafting. Her recent experience includes:

• Acting for the claimant in a whistleblowing interim relief application. The claimant’s ex-employer was a contractor for the MOD, and he alleged that he had made protected disclosures regarding matters of national security and was dismissed as a result. Sarah assisted in drafting the application for the hearing, preparing the evidence and advising generally. The matter settled prior to the hearing.

• Sarah successfully acted for the respondent care home in a whistleblowing case, involving allegations that the claimant had made protected disclosures regarding breaches of CQC rules/health and safety of residents. Sarah was involved right from the outset in advising on how best to defend the application, including assisting with preparation of witness statements.

• Acting for a well-known national chain of pharmacies in a case involving allegations of drug safety issues. Sarah took a hands on approach and assisted in all aspects of dealing with the application, which led to a successful outcome.

• Acting for a charity in an automatic unfair dismissal claim (whistleblowing) in respect of accepted disclosures regarding the non-taxation of a vehicle. Sarah successfully defended the application, arguing that the separability principle established in Kong v Gulf International Bank [2022] EWCA Civ 941 likely applied such that the high threshold as set out in Taplin was not met.

Interim Injunction applications

Sarah also has substantial experience in relation to interim injunction applications in the High Court to enforce restrictive covenants.  For more information on this area please see her Business and Commercial Profile.

ELAAS barrister panel

Sarah has been appointed to the barrister panel of ELAAS (the Employment Lawyers Appeals Advice Scheme). ELAAS is a service offering pro bono employment law advice to appellant and respondents where there is a preliminary hearing in the EAT with no previous legal representation on record. She therefore has vast experience of rule 3(10) permission hearings.

Commercial

Sarah’s commercial practice includes advising, drafting and representing clients in a range of general contractual and commercial matters.  She represents clients in the County Court and High Court. As well as conducting trials Sarah has extensive experience representing clients in the following matters:

• Applications for relief from sanction

• Interim injunctions

• Strike out applications

• Summary judgment applications

• Applications for pre-action disclosure

• Costs and case management hearings

Whilst Sarah has a general commercial practice, she has specific experience in the following areas:

• Contractual disputes

• Misrepresentation

• Credit hire contracts and subrogated claims on behalf of insurers (acting for claimants and defendants)

• Restrictive covenants

• Sale of goods and consumer credit (with a niche practice in package holiday regulations)

• Bonus payments

Sarah also has an extensive employment practice, giving her an invaluable insight and skill set when dealing with cases involving employer/employee disputes. In particular, Sarah has gained considerable experience in matters involving restraint of trade, and thus regularly advises on the enforceability of restrictive covenants and whether or not an interim injunction should be sought.

Typical recent and on-going cases include:

• Advising an accountancy partnership in relation to breach of contract and interim injunction proceedings against a former partner for breach of a non-solicitation clause.

• Acting for a hairdressing salon in relation to breach of non-compete and non-solicitation clauses.

• Advising a dental practice in relation to a breach of agreement claim regarding non-poaching of employees and repudiatory breach of contract. One of the issues was whether or not the covenants were too wide.

• Advising a company in a claim against a former director for breach of confidentiality, breach of fiduciary duties and losses flowing therefrom. Involved evaluation as to whether consideration was provided given that the covenants were entered into some time after employment commenced.

• Acting for the defendant former employee in a pre-action disclosure application, in which allegations of breaches of confidentiality, non-solicit and non-compete clauses were made. Involved allegations against the employee’s new company of procuring a breach of contract.

• Acting for a former employee of a high-end dating site in a matter involving alleged breach of confidentiality, raising issues of the public interest defence and whistleblowing.

• Acted for a community council in an interim injunction application involving allegations of breaches of the Equality Act.

• Acted for the claimant in a claim for sums due under a personal guarantee, involving issues of consideration, misrepresentation and non est factum.

• Acted for the defendant employee and his new employer in an interim injunction application in the High Court.

Sarah has recently lectured on restrictive covenants and the various remedies available and is more than happy to provide a lecture on an appropriate topic.

Year of Call: 2005

Employment Law Bar Association (ELBA)

BA (Oxon) 2:1 Jurisprudence

BVC Nottingham Law School

Inner Temple Exhibition 2004

Sally Ball Award 2004