David Massarella

Year of Call: 1999

PRACTICE AREAS

Discrimination & Equality | Employment | Human Rights | Regulatory

HIGHLIGHTS

Appointed in June 2015 to the Attorney General's Panel of Counsel (B Panel). Appointed in February 2015 to the Equality and Human Rights Commission Panel of Counsel (B Panel). "Fantastic senior junior with a meticulous approach. He is extremely supportive and willing to roll his sleeves up." Chambers and Partners 2017

Overview

David specialises in employment and discrimination law, acting for both claimants and respondents. He has appeared in reported cases in the EAT and the Court of Appeal and has particular expertise in disability discrimination and whistleblowing.

He recently represented the successful Respondent in a widely-publicised case brought by a former Non-Executive Director of an NHS Trust, who alleged that the termination of his appointment was an act of religious discrimination because of his opposition to same-sex adoption (Page v NHS Trust Development Authority).

Other respondent clients have included schools, universities, national retailers, investment and high street banks, local and police authorities, major transport companies, large and small charities, small businesses and a national political party. He has considerable experience in defending multi-day discrimination and whistleblowing claims. He has twice secured the maximum costs award available in Tribunal for his clients at the end of long-running litigation. He has a particular interest in TUPE and has been instructed in high-value transfer cases across a range of sectors.

In 2015 he was appointed to the Attorney General's panel of counsel (B Panel) and has since been instructed by a number of public bodies, including the Department for Education, the Home Office, Public Health England, the Crown Prosecution Service and the OISC.

He was instructed for the claimant in litigation against Sports Direct, which received national coverage and forced the company to advertise plainly the benefits it offers to workers. He also acted for the successful claimants in two high profile pregnancy discrimination cases which, in addition to compensation, resulted in Tribunals recommending that senior staff in a leading law firm be given training in discrimination and that the RAF review its policies.

David has a strong appellate practice. Recent EAT cases include cases on compensation in discrimination cases, disclosure, detriment, secondment, TUPE, and several appeals on the Tribunal's strike-out powers and relief from sanction.

He has been recommended by Chambers and Partners as a Leader in the Employment Field since 2012 and is known for his meticulous case preparation and focussed and incisive cross-examination.

In appropriate cases, he accepts instructions directly from clients under the Bar Council Public Access Scheme. He is currently advising employee clients on disability and pregnancy discrimination issues and employer clients on matters relating to redundancy and TUPE. If you would like to enquire about instructing him directly, either email David or contact the clerks on the number at the top of this page.

Before coming to the Bar David worked for 10 years as a director in theatre and opera, including work for the Royal Opera House.

References

Chambers and Partners 2018

'...His preparation is in itself a work of art. He is able to assimilate large quantities of documentation and get to the nub of a case. He is very good with witnesses and devastating in cross-examination...'

Chambers and Partners 2017

'...Instructed by City law firms across a wide range of employment issues ... Clients highlight his fantastic attention to detail when conducting cases...'

Chambers and Partners 2016

'...Has a reputation for his piercing intelligence...'

'...Sources mention his cross-examination skills as a key strength of his courtroom work...'

'...He is hard working, personable, insightful, thorough, very responsive and accessible. He's also excellent value...'

Chambers and Partners 2015

'...A masterful advocate who is praised for his excellent tribunal manner...'

'...He advises on all aspects of employment and discrimination law and is instructed by a wide range of groups, including City law firms, claimant-focused practices and regional employment teams...'

Chambers and Partners 2012-2014:

'...Provides excellent client care and is good to work with...'

'...He is a brilliant advocate...'

‘...He is quick to grasp the key issues and makes clear and concise submissions...'

'...He combines a natural charm with a robust approach...'

‘...Impresses sources with his forthright advocacy and thorough preparation...'

Appointments and memberships

Appointed in June 2015 to the Attorney General's Panel of Counsel (B Panel)

Appointed in February 2015 to the Equality and Human Rights Commission's new Panel of Preferred Counsel (B Panel).

He is a member of DLA, ELBA, ELA, ILS and BLAGG.

He has taken part in the Social Mobility Foundation mentoring scheme for young people interested in careers in the law and does pro bono work through the ELAAS scheme and the Bar Pro Bono Unit.

He is on the board of ATC (Actors Touring Company) and has previously been a trustee of Southwark Citizens Advice Bureaux and a member of the Executive Committee of the Discrimination Law Association.

Publications and training

He contributed chapters to the 2013 LAG book on Discrimination in Employment and the 2012 Jordans book on Family Rights in Employment.

He has recently given talks and seminars on the test for dishonesty in regulatory proceedings, reasonable adjustments for disabled people, privacy and anonymity in Tribunal proceedings, victimisation and whistleblowing.

He was deputy editor of DLA Briefings for several years and has also written articles for the Solicitor's Journal, Lawtel and, most recently, 'Using the Protection from Harassment Act in the Employment Field' (with Akua Reindorf) and 'Non-disclosure and anonymity' (with Paul Epstein QC) in ELA Briefings.

Qualifications

Magdalen College, Oxford (John Doncaster scholar;
BA Hons Modern Languages, First Class)

City University
Inns of Court School of Law.

Highlight cases

Roddis v Sheffield Hallam University [2018] IRLR 706 - appeared for the Claimant in this successful challenge to the Tribunal's finding that an academic on a zero hours contract could not compare himself with a full-time academic in a claim of part-time worker discrimination.

NHS Trust Development Authority v Saiger [2018] ICR 297 - appeared for the successful 3rd Respondent in this appeal concerning remedy in discrimination cases and procedural irregularity.

Page v NHS Trust Development Authority (London South ET, 2017) - appeared for the successful Respondent in this widely publicised case, in which the Claimant alleged that the decision not to renew his appointment as a non-executive director was an act of religious discrimination because of his views on same-sex adoption (appeal pending).

Gray v Merrill Lynch, Pierce, Fenner and Smith Ltd. (EAT, 2016) - appeared for the Claimant in this successful challenge to a Tribunal's refusal to order specific disclosure under certain categories in this whistleblowing claim.

Osman v Crown Prosecution Service (London Central ET, 2016) - appeared for the CPS in this 7-day constructive dismissal and breach of contract claim. The claimant withdrew mid-trial.

Cordant Security v Singh [2016] IRLR 4 EAT - instructed by the Respondent in this successful challenge to a Tribunal's finding that a failure to investigate a grievance was a discriminatory detriment, despite its finding that the employee fabricated the grievance.

Bacon v Leverton Church of England Academy (Nottingham ET, 2016) - instructed by the governing body in this multi-day unfair dismissal and whistleblowing case brought by the former headteacher. The claimant withdrew mid-trial.

South Central Ambulance Service v Gunn [2015] IRLR 799 EAT - appeared for the Claimant, instructed by the Equality and Human Rights Commission, successfully defending this appeal concerning the application of the Equality Act in the period leading up to a TUPE transfer.

Redhead v London Borough of Hounslow (EAT, 2014 and 2012) [2012] EqLR 628 EAT - represented the local authority in three appeals arising out of the Tribunal's refusal to allow the Claimant to amend her claim and refusal to grant relief from sanction. The case stood struck out.

Gabriel-Abraham v Sports Direct plc (London South ET, 2014) - instructed on behalf of the Claimant in this high-profile challenge to 'zero hours' contracts. He has also been instructed separately by other claimants in 'zero hours' cases.

Tantum v Travers Smith Braithwaite Services [2013] EqLR 736 - appeared in this widely-reported case for Katie Tantum who won her pregnancy discrimination claim against the leading firm of solicitors where she had trained. The Tribunal found that the firm contrived to reduce the number of available newly qualified posts and that 'pregnancy was the effective cause of the decision'.

LKR v SP Ltd [2013] EqLR 856 - appeared for the the employer in this case concerning allegations arising out of the end of a relationship between a CEO and his PA. The Tribunal granted permanent anonymity and restricted reporting orders.

X v Y (Manchester ET, 2013) - represented the Claimant, a social worker dismissed for attending BDSM clubs. The Respondent settled mid-trial.

Burzynski, Wolf and Dabrowski v NFT Distribution (Watford ET, 2013) - successfully defended the Respondent against three linked whistleblowing claims: the first was struck out with costs and the second dismissed on withdrawal in the course of the two-week trial; the third claim was dismissed in a reserved judgment.

Bivonas LLP v Bennett [2012] EqLR 216 EAT - instructed by the Equality and Human Rights Commission, successfully defending this appeal on behalf of the Claimant, who discovered explicitly homophobic references to him in archived documents.

Williams v North Wales Police (Abergele ET, 2011) - represented the Claimant in this disability discrimination case, the biggest employment case brought against North Wales Police in the last fifteen years. The Tribunal found the Respondent withdrew reasonable adjustments from a civilian employee with a chronic back condition and constructively dismissed her.

Gregory v Her Majesty's Forces (Royal Air Force) (Reading ET, March 2010). The ET upheld the Claimant's complaints of pregnancy discrimination and harassment in respect of the RAF's decision to remove her from her role on the Falklands. As well as awarding compensation for injury to feelings, the ET made recommendations that the RAF review its policies concerning pregnant officers; represented the Claimant.

New Southern Railway Ltd v Quinn [2006] ICR 761, [2006] IRLR 266. A case concerning maternity suspension for health and safety reasons; acted for Mrs Quinn, whose claims were upheld, in the ET and the EAT.

Meikle v Nottinghamshire County Council [2005] ICR 1, [2004] IRLR 703. A case recently described by the EAT as 'perhaps the leading authority at Court of Appeal level in respect of constructive dismissal'; represented a visually-impaired teacher in the ET, the EAT and as junior Counsel in the Court of Appeal (led by Brian Langstaff QC and instructed by the Disability Rights Commission).

Hardy & Hansons v Lax [2005] ICR 1565, [2005] IRLR 256. The Court of Appeal gave definitive guidance in this case on justification in indirect sex discrimination; appeared for Mrs Lax (led by Brian Langstaff QC), whose request to work part-time after her maternity leave was unlawfully refused.

X v Y [2003] ICR 1634, [2004] IRLR 625, [2003] IRLR 561 (EAT and Court of Appeal) - junior Counsel for the Claimant, instructed by Liberty, in this landmark Court of Appeal case, which sets out how Tribunals should apply the Human Rights Act in the Employment Tribunal.