Edward Kemp

Ed is noted for a practice which “has seen him in courts of all levels, up to the Supreme Court” (Chambers & Partners 2017 & 2020).

Supreme Court & Court of Appeal:

• P v. Commissioner of Police for the Metropolis [2018] 2 CMLR 4; [2018] ICR 560; [2018] IRLR 66; Times, November 14 2017 – landmark victory in Supreme Court for police officers bringing discrimination claims in the Employment Tribunal following police misconduct proceedings; important case on direct effect of EU Directives; [2016] IRLR 301, CA – immunity from suit of Police Misconduct Panel from discrimination claims in the Employment Tribunal. Led by Karon Monaghan QC in the Court of Appeal and the Supreme Court having appeared alone in the ET and the EAT.
• Dr S Verma v. Barts and the London NHS Trust [2013] ICR 727, [2013] IRLR 567, SC (meaning of pay protection for doctors in the NHS) – appeared alone and successfully in the EAT and led by Karon Monaghan QC in the Court of Appeal and the Supreme Court, where he was personally mentioned for his “diligence” by Lord Carnwath in the Judgment.
• Green v. SIG Trading Ltd [2019] IRLR 123; The Times, December 3, 2018, CA  (listed for two days with British Council v Jeffery [2016] IRLR 935, EAT). Important case on territorial reach of Employment Rights Act to international whistleblowers. Ed led Grahame Anderson in the Court of Appeal against two silks.

Recent EAT cases:

• Alastair Dobbie v. Paula Felton t/a Feltons Solictors UKEAT/0061/20 – appeal on meaning of public interest test for whistleblowing – listed for EAT hearing in December 2020; Category A.
• Sophia Walker v. Wallem Shipmanagement Limited & Others [2020] IRLR 257 – construction of the “mariner” provision in section 81 of the Equality Act 2010 to those who apply to work on a ship.
• Andruhovics v Sapient Limited UKEAT/0031/81/RN – scope of duty on ET to assist litigants in person to formulate their claims. Represented successful Respondent. 5 separate appeals to the Court of Appeal dismissed on the papers by Longmore LJ in January 2019.
• Wright v. Aegis Defence Services UKEAT/0173/17/DM – employment status and territorial reach of security contractor in Kabul, Afghanistan (IDS Volume 3, Chapter 2.30 and Volume 5, Chapter 2.67).
• Green v. SIG [2017] ICR 1274 – objective assessment of strength of connection test in territorial reach cases, attracted widespread industry commentary in the UK and abroad (Harvey Division H [1108.01], IDS Emp. L. Brief 2017, 1073) (sole counsel against a silk).
• Dr Lees v. Imperial College of Science and Technology UKEAT/0288/15/RN – representing Imperial in an appeal concerning the meaning of the redundancy payment provisions in s.136 ERA (IDS Volume 9, Chapter 1.43).
• Dr S Verma v. Newham University Hospital NHS Trust UKEAT/0255/15/JOJ – representing the doctor in a further pay protection challenge to the NHS terms and conditions of service following the challenge in the Supreme Court.
• Russell v. College of North West London [2014] All ER (D) 200 (Sep) – represented local authority in this two-day case before the EAT concerning the “Bradford Score” and disability discrimination (see: Equal Opportunities Review, October 2014).
• George v. London Borough of Brent [2014] All ER (D) 10 (Sep) and (No.2) UKEAT/0233/15/DM – represented local authority in this case about trial periods in redundancy law, successfully defeated claim on remission on each occasion. He recently appeared in (No.3) UKEAT/0089/18/RN as sole counsel against a silk.
• Igbinake v. Axis Security [2014] All ER(D) 51 (Sep) – represented appellant pro-bono is case about inadequacy of Tribunal reasons and religious discrimination.

Ed is a member of the ELAAS scheme and appears pro-bono in the EAT in that capacity, assisting and representing litigants in person with apparently hopeless appeals. Ed has also appeared in the EAT on behalf of Advocate.

Ed acts for both employers and employees in complex or high value discrimination and whistleblowing claims. Ed has very broad sector experience including the full spectrum of city claims, NHS, the police, education, local and central government. Ed has been consistently recognised for his long-standing specialist expertise in equality law. In Chambers & Partners 2014, he was “particularly commended for his ability to handle novel discrimination cases”. In 2015, he was again noted for his “standout expertise in discrimination cases”. Ed has also been recently commended in Chambers & Partners 2018 for his “…deft handling of whistle-blowing cases.”

Ed’s recent cases in these fields include:-

• Representing a bishop defending a test case as to whether a freehold incumbent clergy member has worker or employment status under domestic law and EU law.
• Defending global management consultancy in respect of a complex whistleblowing claim involving issues of Delaware law (case settled; sole counsel against a silk).
• Successfully represented embassy worker in first of its kind discrimination trial against State of Qatar raising issues of state and diplomatic immunity with press coverage in the Times, the Telegraph, Evening Standard and worldwide media (sole counsel against a silk; 6-day trial in March 2019 – Qatar withdrew mid-way through Ed’s cross-examination of the diplomat; remedy hearing in June 2019; six figure damages obtained, including aggravated damages, recommendations and costs. Claim for just satisfaction against the UK currently pending before the ECtHR).
• Instructed to represent senior banker in seven figure whistleblowing and discrimination trial (8-day trial, December 2019, case settled for high six figure sum).
• Successfully represented a civil servant in a 10-day race victimisation trial against a central government department (Autumn 2018). Damages for injury to feelings and psychiatric injury awarded (Spring 2020).
• Instructed to represent a senior executive in a 10-day sexual orientation discrimination claim against a bank (Spring 2019) (sole counsel against a silk).
• Represented a leading consultant in a complex 10-day whistleblowing claim and backdated holiday pay claim (cases settled shortly before trial and at mediation respectively).
• Represented clinical lead of an NHS department in a complex 11-day whistleblowing detriment and race discrimination claim.
• Successfully defended a school in a high-profile whistleblowing claim by a former deputy of department with widespread media coverage in the Daily Mail and The Telegraph.
• Represented employer (led by John Bowers QC) in seven figure claim for psychiatric injury (case settled at door of tribunal).
• Represented doctor (leading Marc Delehanty) in a ground-breaking free movement of workers challenge to a contractual benefit (case settled on eve of hearing) (against a silk at the initial stage).
• Representing and advising various workers and companies in territorial jurisdiction cases in territories as far and wide as: Antigua, Afghanistan, Hong Kong, the USA, Tanzania, Mozambique and Saudi Arabia.
• Successfully represented a household brand in a 3-day sex discrimination case with coverage in The Telegraph.
• Represented a police constable in a gender reassignment discrimination case with widespread national media coverage in the Sun and the Daily Mail ([2014] EqLR 184).
• Represented higher education college in resisting disability discrimination challenge to “Bradford score” in two separate cases in Tribunal ([2013] EqLR 737) and in Tribunal and successfully on appeal ([2014] All ER (D) 200 (Sep)).
• Advising senior executives on discrimination claims of various kinds (e.g. race, age, sex).

Ed is one of the leading juniors at the London Bar in international employment cases. He is one of very few employment barristers with a practice that is international. He has been repeatedly noted over the years for his “international” practice (Chambers & Partners 2017, 2018 & 2020). Ed is recognised among the top lawyers from across the globe in the Chambers Global Guide 2020 as one of the leading experts for Employment in the United Arab Emirates and he is the only junior recognised in the category of Expertise Based Abroad.

Ed’s experience encompasses both jurisdiction and territoriality disputes in the domestic courts in addition to advisory and advocacy work on cases in forums overseas. Ed is also an expert in human rights challenges to sovereign, diplomatic, judicial and intergovernmental immunities.

Ed routinely works alongside foreign lawyers in cross-border employment cases. Recent experience includes:

• Providing a legal opinion on the territorial scope of UK labour law and UK international jurisdiction, assisting an appellant to bring a successful appeal before the Supreme Court of another EU Member State.
• Conferences with Swiss lawyers on a jurisdictional dispute in the UK and in Switzerland concerning the Lugano Convention.
• Resisting an application to stay ET proceedings on the basis of anti-suit injunction proceedings in the Indian Courts (case settled on the eve of the ET hearing and before judgment was ended down by the Indian Courts).

Ed’s recent market leading experience in the domestic courts includes:

• Green v. SIG Trading Ltd [2019] IRLR 123, Court of Appeal (listed for two days with British Council v Jeffery [2016] IRLR 935, EAT). Important case on territorial reach of Employment Rights Act to international whistleblowers. Ed led Grahame Anderson in the Court of Appeal against two silks.
• Wright v. Aegis Defence Services UKEAT/0173/17/DM – employment status and territorial reach of security contractor in Kabul, Afghanistan (IDS Volume 3, Chapter 2.30 and Volume 5, Chapter 2.67).
• Green v. SIG [2017] ICR 1274 – objective assessment of strength of connection test in territorial reach cases, attracted widespread industry commentary in the UK and abroad (Harvey Division H [1108.01], IDS Emp. L. Brief 2017, 1073) (sole counsel against a silk).
• Simon-Hart v. Standard Chartered Bank – successfully represented the bank in territorial reach challenge by its former senior legal counsel based in Dubai.
• X v. Y and another – construction of Lugano Convention. Territorial scope of EU Directives (January 2019).
• Anderson & Others v. Swire Pacific – successfully represented the shipowners in respect of a territorial reach challenge by seafarers servicing wind turbines in the North Sea.
• Representing an ivy league university in defence of an equality act claim; novel points as to territoriality of co-worker provisions and vicarious liability (case settled).
• Representing as sole counsel a senior executive in a territorial reach issue against a silk and a junior with concurrent anti-suit proceedings in South Asia (case settled on terms on the eve of the hearing).
• Representing an international commuter in an issue concerning the territorial reach of the ERA to an employment / agency relationship in Tanzania / UK.
• Representing the owner of a superyacht in an issue concerning the territorial reach and the “mariner” provisions of the ERA in respect of the employment of its former captain residing in the Caribbean.
• Advising a charity on the employment status of missionaries in Africa.
• Advising international civil servants in respect of potential before the UNDT in Arusha and before the ILOAT in Geneva (where the staffing agreement provided right of appeal to the ILOAT).

Ed’s work in the area of immunities from suit includes:

• P v. Commissioner of Police for the Metropolis [2018] 2 CMLR 4; [2018] ICR 560; [2018] IRLR 66; Times, November 14 2017 – landmark victory in Supreme Court using EU Directives to successfully challenge judicial immunity of police misconduct panels.
• Successfully represented embassy worker in first of its kind discrimination trial against the State of Qatar raising issues of state and diplomatic immunity under the Vienna Convention with press coverage in the Times, the Telegraph, the Evening Standard and worldwide (2014-2019). Claim for just satisfaction against the UK pending before the European Court of Human Rights.
• Advising a foreign government on state immunity and diplomatic immunity in the context of extremely sensitive litigation being pursued in the County Court.
• Representing a number of individuals in the Employment Tribunal resisting pleas of state immunity by relying on SIA exemptions and EU law fundamental rights (forthcoming in 2021; sole counsel against silks).
• Representing an intergovernmental organisation asserting immunity from suit under the International Organisations Act 1968 and Council Order.
• Representing a foreign government asserting state immunity post-Benkharbouche [2015] EWCA Civ 33 in successful first instance and appellate proceedings in the county court.

Ed has full rights of audience before the DIFC Courts in Dubai and he has advisory experience in respect of the Abu Dhabi Global Market Courts. Ed is recognised in the Chambers Global Guide 2020 as the leading junior for Employment in the United Arab Emirates. He is described as:

“A strong DIFC practitioner who receives widespread acknowledgement for his abilities in arbitrations. One interviewee was eager to mention that “he can put things across in a straightforward manner, even if they are complex,” adding that “he is very intelligent” and his “technical knowledge is fantastic.” Based in London, he is regularly instructed in Dubai for various employment disputes.”

He has co-authored the commentary on the DIFC Employment Law published by LexisNexis Middle East (forthcoming). Over the last few years, he has recently appeared as counsel or adviser in a number of leading employment cases within that jurisdiction:

• Khalifa v. Swift (Dubai) Limited [2020] DIFC CA 005, leading authority on whistleblowing protection in the DIFC Operating Law.
• Advising on an ancillary freezing order in complex cross-border litigation in the DIFC and in Europe (confidential).
• Advising on a team move from an onshore business and the jurisdiction of the Abu Dhabi Global Market Courts (confidential).
• Acting in an appeal from the DIFC Small Claims Tribunal to the Court of First Instance.
• Defending employment claim in the DIFC Court of First Instance (confidential and ongoing).
• Confidential advice on the construction of the draft new Employment Law and the effect on historic discrimination and ongoing penalty claims in the DIFC Courts.
• Acting for a global insurer in the DIFC Court of First Instance in defence of a breach of contract / bonus claim by a senior executive with pleaded value exceeding $2 million (case settled on confidential terms).
• Pierre Eric Lys v. Elseco CFI012/2014, Article 59A (termination for cause) and Article 18 (penalty for failure to pay wages).
• BGC Brokers v. Abourahim CFI027/2013, Article 59A (termination for cause), ground breaking case on mutual trust and confidence in DIFC employment contracts (listed as one of the top three most notable cases in the DIFC Court of First Instance in 2015 in the Court’s Annual Review 2015: LINK).
• Gaspar v. Gavrilla & Company, SCT 3/4/16 – settled defence and advised the successful (anonymised) defendant in this case concerning pre-conditions of an offer of employment by a law firm.

Ed has a long-standing interest and expertise in comparative and conflicts of law.

Ed was educated in both English Law and French Law.  He has an LLB from King’s College London and a Maîtrise en Droit from Université de Paris I (La Sorbonne). Ed then took an LLM from University College London which focused on employment, equality law and comparative law.

Ed’s experience in this area includes:

• Led the legal team (sole counsel against a silk and a junior) in respect of a High Court action involving complex issues of foreign law (case settled before CCMC on favourable terms).
• Appearing in CMC as sole counsel against two silks with their juniors in £16 million bribery and conspiracy claim issued in the Chancery Division.
• Advising on a potential team move in the Abu Dhabi Global Market Courts in the United Arab Emirates.
• Re a legal aid firm – acting for a criminal legal aid firm in a dispute over the allocation of legal aid slots and a departing employee. Injunction hearing before Kerr J in April 2018 (case settled before trial).
• Advising an individual in respect of employee competition issues with an international jurisdiction angle.
• Advising businesses in respect of ongoing confidential information litigation where previous counsel (including leading counsel) have been involved at the interim stage.
• Led by Selwyn Bloch QC in defending multi-million pound senior executive wrongful dismissal claim (appeared alone against a silk in an interim application).
• Defending a senior executive wrongful termination claim in the DIFC Courts in Dubai involving expert forensic accountancy evidence.
• Representing a language agency in threatened injunction for theft of confidential information and database (case settled before injunction).
• Litigating concurrent proceedings in the Employment Tribunal / High Court, for example shareholder disputes with good leaver / bad leaver provisions.
• Advised as part of a multi-disciplinary team of counsel on the bonus element of a partnership dispute proceeding in the Chancery Division.
• Contractual interpretation – litigation on several occasions in the appellate courts including the Supreme Court.
• Conflicts of law and jurisdiction.
• Fiduciary duties.
• Confidential information (including the Database Regulations).
• Litigating concurrent proceedings in the Employment Tribunal/High Court.
• Bonus claims including complex points of contractual interpretation and the scope of implied terms.

Ed has a broad range of experience across the full width of statutory employment claims. He represents both employers and employees in addition to providing advisory services. Ed has particular expertise in pay disputes of all kinds and work in the medical field, the police service and City disputes. Ed’s recent work in this field includes:

• Successfully represented a further education college in a 4-day trade union activities and race victimisation claim against a former union representative (costs application pending); local media coverage and related strike action.
• Representing the employer in the case management of complex mass holiday pay claims. Representing senior executives and atypical workers in very substantial back-dated holiday pay claims.
• Representing employment agency in complex claim under the Agency Worker Regulations (claim withdrawn after cross-examination).
• Successfully represented an NHS Trust in a case concerning the meaning of the recognition of previous service provisions in the NHS Terms and Conditions of Service for Doctors.
• Represented the lead Claimant in a test case on the meaning of the new pay protection provisions for doctors within the NHS.
• Defending various respondents in cases involving employment status issues and illegality.
• Persuaded an ET to strike out as vexatious a claim for a declaration of failure to consult under s.188 TULRCA on the basis that the “game [wasn’t] worth the candle, let alone the wick”.
• Represented a senior employment lawyer at a mediation against a silk which led to a confidential and bespoke five figure settlement.
• Successfully represented a property lawyer obtaining a finding of employment status and resisting various Polkey arguments raised in remedy following a late admission of liability.
• Advising a banker on the merits of his claim for unfair dismissal arising from allegations of insider dealing.
• Advising on the TUPE Regulations 1981 for the purposes of an industrial disease claim in the High Court (case settled for a high five figure sum).

Ed is recognised in the current edition of Chambers and Partners (2017 & 2020) for his “cross-disciplinary expertise in employment, commercial and professional negligence matters”. Ed is able to combine the experiences of his early years of practice in personal injury with his skill set in employment and employment-related fields when it comes to novel or complex litigation in the civil courts.

Ed is regularly instructed to litigate pay disputes and other contractual disputes in the civil courts. He has strong legal expertise in contractual interpretation issues and in the law of implied terms. He has a particular depth of experience in health care sector cases:

• Instructed to represent a Trust in a county court dispute over the Specialty Doctor terms.
• Representing almost an entire department of doctors in a pay dispute with a Trust.
• Advising and representing individual doctors in breach of contract claims in the civil courts.
• Advising and representing doctors in injunctive proceedings.

Ed also has an established practice as an equality practitioner in the goods and services field:

• Successfully representing a company in a three-day race discrimination on the multi-track.
• Successfully representing a parking enforcement company in a race discrimination claim in the county court and at a mediation.
• Successfully representing an estate agent in a race and sexual orientation discrimination claim in the county court.
• Led by David Reade QC in drafting a defence to a novel goods and services claim in the banking sector.

Ed’s practice in the professional negligence field continues to develop apace. Chambers and Partners (2016) notes Ed’s “…skill at handling professional negligence and employment situations.” In this sensitive and often highly confidential area, Ed has been involved in a number of High Court/County Court actions. The cases typically include allegations of negligent employment advice or failed employment litigation with complex issues of quantum. The cases sometimes involve concurrent proceedings for breach of contract against former employers.

Ed has a developing interest in arbitration as a forum for dispute resolution within all of his practice areas. Ed is able to combine his skills as a litigator with his knowledge of comparative legal systems and cultures.

In 2012, Ed researched and drafted a concept paper for a code of conduct for NGOs with a designated Arbitral Tribunal to resolve personal injury claims against international NGOs.