Tom Kirk

Call date: 2007
Email: tkirk@elyplace.com
Telephone number: 020 7400 9600

Tom Kirk

Call date: 2007
Email: tkirk@elyplace.com
Telephone number: 020 7400 9600

He is an academically terrific opponent, whose advocacy is both measured and incisive.

Legal 500 – 2020

Practice areas

Business  Public & regulatory

Tom’s practice is divided between chambers’ Employment, Business and Public & Regulatory practice groups. He is predominantly an employment law specialist with particular expertise in disability discrimination, frequently instructed by both Claimants and Respondents in difficult long-term sickness absence and reasonable adjustments claims and disputes over worker status. He is ranked as a leading individual for employment law in the Legal 500, which describes him as “an academically terrific opponent, whose advocacy is both measured and incisive” (2020 edition).

Tom has extensive experience in dealing with politically sensitive disputes for his clients in the public, educational and charitable sectors. Through his appointment to the Attorney General’s B Panel, he is regularly instructed by government departments.

Business

Tom’s commercial practice intersects with his employment work and he often advises companies on their obligations under TUPE, how to draft employment contracts and on restraint of trade issues. He has acted for companies in a number of commercial disputes involving contracts for the sale of goods and has advised on the incorporation and construction of indemnity and warranty clauses within commercial contracts. Tom has a developing practice in Construction Law and has been instructed in some high value Construction Adjudications. He was recently instructed as a junior in a Technology and Construction Court claim worth almost £1.5 million, involving complex legal arguments over the jurisdiction of adjudicators.

Recent cases include:

  • Hart & PK Maintenance v Ideal Response Group Ltd [2018] EWHC 314 (TCC): claim for almost £1.5 million in unpaid construction adjudication awards arising out of contracts to convert the Olympic Village into residential accommodation;
  • Loopdynamic Ltd v Louis Young and Open Select Recruitment Ltd (QBD) (Picken J): application for interim injunction by recruitment company to enforce restrictive covenants in recruitment consultant’s contract, involving ambit and reasonableness of non-solicitation clauses;
  • Z v G: advising and drafting pleadings in commercial contract dispute over the supply of digital marketing services;
  • X v Y: advising over the enforceability of various restrictive covenants for consultants working as international foreign exchange brokers.
Employment

Tom has been appearing regularly in the Employment Tribunals for almost 12 years. He is frequently instructed to appear in multi-day trials and preliminary hearings. He has an extensive paperwork practice and has been acknowledged by clients for providing thorough yet concise advice and robust pleadings. He also advises employer clients on various non-contentious matters, including TUPE transfers and the review of disciplinary and grievance policies. Tom also appears in appeals before the Employment Appeals Tribunal and Court of Appeal and also has experience of restraint of trade cases in the High Court.

In addition to work his work in the public-sector, Tom is equally at home representing commercial clients and has been praised for his ability to quickly find a solution to a dispute that embraces an employer’s specific practical and business needs.

Tom has a user-friendly approach that helps his Claimant clients feel at ease when faced with the potentially daunting prospect of litigation. He has achieved a number of high value awards and settlements but is also quick to grasp the non-monetary aims pursued by Claimants such as negotiating re-engagement packages and agreeing full and fair references for dismissed employees. Tom regularly acts for trade union members and has represented Unite and UCATT members in multiple Tribunal claims involving trade union related dismissals, non-payment of the National Minimum Wage and holiday pay. He also has experience of representing professional employee clients in internal disciplinary appeal hearings.

Recent cases include:

  • DWP v Robinson [2019] UKEAT/0021/19: on the application of the test for causation under section 15 of the Equality Act 2010 (currently being appealed to the Court of Appeal);
  • Aston v Martlet Group Ltd [2019] UKEAT/0274/18: on victimisation and whether the doctrine of judicial proceedings immunity is incompatible with EU law;
  • Akhigbe v Berkeley Homes (Urban Renaissance) Limited [2019] UKEAT/0005/18: on whistleblowing and the meaning of detriment and whether ET erred in striking out case at Preliminary Hearing;
  • Dunn v Secretary of State for Justice [2019] IRLR 298 (Underhill LJ);one of the recent leading cases on section 15 discrimination. Deals with when cases should be remitted to the ET rather than substituted;
  • Blakely v Onsite Recruitment Solutions Ltd [2018] UKEAT/0134/17/DA (Choudhury J): worker status in the construction sector and intention to create legal relations;
  • Farrer v Secretary of State for Justice [2018] UKEAT/0286/17 (HHJ Richardson): contractual status of capability policy and contractual interpretation;
  • Tree v South East Coast Ambulance Service [2017] (Ashford ET):acted for Claimant in this 5 day disability discrimination trial concerning the restructure of an NHS trust;
  • Dhami v Tesco Stores Ltd [2017] (Southampton ET): acted for the Claimant in what is thought to be one of the first cases in which unlawful tribunal fees have been considered as a reason for extending time;
  • Davis-Bol v Brook Street and MOJ (Huntingdon ET) [2017]: represented Second Respondent in this 7 day trial concerning allegations of a long-running campaign of racial harassment;
Public & regulatory

Tom regularly appears in Coroner’s Courts at Pre-Inquest Reviews and full Inquests, representing families, government departments and companies. In particular, he acts for the Prison Service and Police Authorities in Article 2 Inquests into deaths in custody and in civil claims brought under the Human Rights Act 1998 resulting from the same.

He advises, drafts pleadings and appears in a wide range of other cases involving Prisons and Prisoners, including: claims involving alleged breaches of Convention rights, negligence, misfeasance in public office, false imprisonment, discrimination and claims for reasonable adjustments under the Equality Act 2010.

Key cases include:

  • Inquest into death of S (Coroner for Westminster) [2019]; jury inquest into death of prisoner from hyperthermia whilst in court custody on hottest day of the year. Heard over 2 weeks;
  • Inquest into death of F (Coroner for Dorset) [2018]: Article 2 inquest into death in custody of inmate, concerning the monitoring and management of self-harm and the review and closure of ACCT documents;
  • Inquest into death of C (Coroner for Dorset) [2016]:week-long inquest involving issues surrounding a failure to take medication, referrals to mental health team and emergency response protocols;
  • Inquest into death of D [2015] (Coroner of the IOW): two-week Article 2 inquest into death in custody of an inmate with mental health disorder;
  • FN and AL v Secretary of State for the Home Department [2015] EWHC 3057 (QB) (Hamblen J): appeal against a Master’s costs decision dealing with the scope of the duty of candour in without notice applications and the extent to which it requires an applicant to disclose the content of without prejudice communications.

Memberships

2016: Attorney General’s Junior Counsel to the Crown, B Panel;
2012: Attorney General’s Junior Counsel to the Crown, Regional Panel.
Volunteer advisor, Employment Law Appeal Advice Scheme (“ELAAS”)
Employment Law Bar Association
Employment Lawyer’s Association
Discrimination Law Association

Regulatory information

Vat number: 939863953

Bar Standards Board